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Granted.
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Denied.
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Denied.
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Denied.
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Granted.
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Greene, J.:
Lori Lynn Stout appeals from her conviction and sentence for one count of unlawful sexual relations, contrary to K.S.A. 2004 Supp. 21-3520(a)(8). Her appeal frames for our consideration several issues of first impression in applying this statute to conduct between a teacher and a student, where the ultimate sexual touching was “French kissing.” We conclude that French kissing under the circumstances of this case can be legally sufficient to constitute lewd touching and that sufficient evidence supported Stout’s conviction, but we reverse her conviction and remand for a new trial due to jury instruction error.
Factual and Procedural Background
In early 2003, victim E.Z. was 16 years old and a student at Wellington High School. Stout was her chemistry teacher in the fall of 2002 and her softball coach. E.Z. began staying overnight at Stout’s house 2 or 3 years prior, and they would usually watch movies. During the intervening period, E.Z. “developed feelings” for Stout, but according to E.Z., this was not the result of any misconduct by Stout.
During an overnight visit by E.Z. to Stout’s residence while watching movies, E.Z. leaned over and kissed Stout. Stout responded by pulling away and stating that she did not think this was a good idea. Nevertheless, E.Z. and Stout finished the movie and then began discussions wherein E.Z. professed her feelings for Stout. After talking throughout the night in bed together, they engaged in further emotional discussions. At some point during these discussions, E.Z. initiated another kiss, this time described as a “French lass” or an open mouth kiss where her tongue touched Stout’s tongue for a couple of minutes. After the lass, the two professed their love for each other. Although E.Z. agreed that the kiss was “romantic” and admitted that the kiss aroused “feelings of intimacy,” she denied any “feeling of wanting to have sex or anything like that.” On cross-examination by defense counsel, E.Z. stated that she was never sexually aroused but rather emotionally aroused and “wanted to be close” to Stout.
Although this first French kiss was the only sexual act charged, E.Z. testified that following this episode, she spent the night with Stout on several occasions, slept in the same bed, and often engaged in French kissing. She denied any other type of sexual touching or activity, and Stout told authorities that they were not interested in taking their relationship to that level, in part due to Stout’s strong belief drat premarital sex was against her religion. These encounters continued until E.Z.’s parents became involved in September 2003. Upon discovery, Stout voluntarily resigned her teaching position because she “didn’t want to cause Wellington High School problems.”
In December 2003, Stout was charged with one count of unlawful sexual relations, contrary to K.S.A. 2004 Supp. 21-3520(a)(8). After a prehminary hearing, Stout was bound over for arraignment. Stout stood mute to the charge and filed a motion to suppress statements and a motion to dismiss the charge; both motions were denied by the district court after argument. The matter proceeded to trial by a jury, but prior to deliberations, the defense objected to proposed juiy instruction No. 5, which provided a dictionary definition of the word “morals.” The court overruled the objection, gave the instruction, and the jury found Stout guilty as charged. She was sentenced to probation for 12 months with an underlying prison term of 7 months — the maximum sentence under the sentencing guidelines. The court overruled a defense objection to Stout’s registration as a sex offender. See K.S.A. 2004 Supp. 22-4901 et seq. Stout appeals.
Did the District Court Err in Denying Stout’s Motion to DismissP
Stout first argues that the district court erred in denying her motion to dismiss because a French kiss cannot constitute lewd touching as a matter of law. This argument requires that we interpret K.S.A. 2004 Supp. 21-3520(a)(8) and, in doing so, our review is unlimited. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
The unlawful sexual relations statute, K.S.A. 2004 Supp. 21-3520, provides in relevant part:
“(a) Unlawful sexual relations is engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if:
(8) tire offender is a teacher or a person in a position of authority and the person with whom die offender is engaging in consensual sexual intercourse, lewd fondling or touching or sodomy is 16 or 17 years of age and a student enrolled at the school where the offender is employed.”
Our Supreme Court in State v. Wells, 223 Kan. 94, Syl. ¶ 2, 573 P.2d 580 (1977), construed the term “lewd fondling or touching” to mean:
“fondling or touching in a manner which tends to undermine the morals of the child [victim], which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with die specific intent to arouse or to satisfy the sexual desires of either the [victim] or the offender or both.” (The Wells criteria.)
Stout relies principally on two cases to support her argument. We find neither persuasive. First, she cites State v. Ramos, 240 Kan. 485, 487, 731 P.2d 837 (1987), where our Supreme Court sustained a conviction for lewd touching but, according to Stout, “required much more than a kiss to do so.” We certainly agree that the touching in Ramos included not only kissing, but pulling the child into bed, hugging her, and fondling her buttocks and pubic area. We find no guidance in the Ramos opinion, however, on how to make this legal determination for circumstances like those presented here.
Second, Stout cites State v. Louviere, 602 So. 2d 1042 (La. App. 1992), where attempted but unsuccessful French kissing was deemed insufficient under the facts of that case to establish attempted indecent (lewd) behavior with a juvenile under Louisiana law. Not only does Louviere address quite different facts (daylight, plain view, while defendant scraping garbage from a plate) and construe a very different statute (La. Rev. Stat. Ann. § 14:81 [West 1992]), it is directly contrary to Wells in requiring “genital contact or any other obscene or indecent act or repeated occurrence” to meet the statutory threshold in Louisiana for indecent or lewd behavior. Compare Louviere, 602 So. 2d at 1044-45, with Wells, 223 Kan. at 97 (touching of sex organs not required for lewd touching). Moreover, we do not read Louviere as supporting the proposition that a French kiss is legally deficient to establish indecent or lewd behavior, but rather that the evidence was insufficient in that particular case. 602 So. 2d at 1044-45 (“[I]t would be difficult for the rational trier of fact to conclude that the testimony concerning a ‘bad kiss’ proved the occurrence of a lewd and lascivious act.” [Emphasis added.]).
Far more persuasive are authorities from other jurisdictions which have recognized that a French lass is an inherently sexual act generally resulting in sexual excitement and arousal. See, e.g., Altman v. State, 852 So. 2d 870, 875-76 (Fla. Dist. App. 2003) (verdict reflected a common understanding that such intimate oral contact with a child is sexual in nature); People v. Kirilenko, 1 Ill. 2d 90, 96, 115 N.E.2d 297 (1953) (kissing can constitute sexual conduct under appropriate circumstances); People v. Calusinski, 314 Ill. App. 3d 955, 961-62, 733 N.E.2d 420, 426 (2000) (reasonable inference that defendant’s placement of his tongue in victim’s mouth was for purposes of his own sexual arousal); People v. Ford, 83 Ill. App. 3d 57, 74, 403 N.E.2d 512 (1980) (placing tongue in victim’s mouth could constitute a lewd sexual act); State v. Toster, 2004 WL 2339380 (N.C. App. 2004) (unpublished opinion) (tongue kissing is simply not an activity which lends itself to nonsexual interpretation). In contrast to these authorities, we find none which conclude that French kissing cannot be lewd, touching as a matter of law.
A French kiss or tongue kiss is indisputably a touching; moreover, it is a touching that is not necessarily innocent, dependent upon the circumstances. Given the weight of authorities acknowledging that such kissing can be intimate sexual contact, we decline to hold as a matter of law that such contact cannot be lewd touching for purposes of K.S.A. 2004 Supp. 21-3520. Whether such contact was lewd given the totality of the circumstances was a question for the jury. See State v. Gilley, 5 Kan. App. 2d 321, 324, 615 P.2d 827, rev. denied 228 Kan. 807 (1980). The district court committed no error in denying Stout’s motion to dismiss.
Was Stoufs Conviction Supported by Sufficient Evidence?
Stout next challenges the sufficiency of the evidence to support her conviction. Our standard of review is whether, after review of all the evidence, viewed in the light most favorable to tire State, we are convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. See State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
In support of her argument, Stout emphasizes that E.Z. was the instigator of die conduct, that there were never any sex acts, that there was a denial of sexual arousal, that Stout denied any intent to take the relationship to the next level, that E.Z’s morals were not undermined because she admitted prior incidents involving French kissing, and that there was no conduct that would outrage the moral senses of a reasonable person. We find these arguments cogent and substantial, but they do not merit reversal given our standard of review.
First, it matters not for purposes of K.S.A. 2004 Supp. 21-3520 that E.Z. was the instigator; merely “engaging” in consensual conduct meets the extent of the statutory requirements, and the Wells criteria proscribes an intent to gratify the victim or the offender or both. See Wells, 223 Kan. 94, Syl. ¶ 2. Second, the absence of “traditional” sexual activity such as intercourse or sodomy is simply not required by the statute; lewd fondling or touching alone is specifically proscribed. Third, the denial that any sexual arousal was achieved does not exclude a finding that sexual arousal was intended; as noted by our court in Gilley, proof of actual arousal is not required — intent may be shown by circumstantial evidence. 5 Kan. App. 2d at 324. Fourth, we view Stout’s denial of any intent to take the relationship to the next level as being mutually exclusive to her intent in the acts of French kissing; she may have not intended to move on or progress to more traditional sexual acts, but that alone does not clothe her intent in the acts of French kissing with innocence. Fifth, E.Z.’s prior kissing experience might be relevant to the state of her morals, but it does not negate the possibility that the jury could find that the encounter with Stout served to further undermine that moral condition. Finally, whether the offending activity under the totality of the circumstances served to outrage the moral senses of a reasonable person is best left to the jury; our reasoning here parallels our discussion concluding that the involved activity cannot be legally deficient as a matter of law, but we note that even Stout’s initial response to E.Z. indicated an awareness that such conduct was wrong at some level.
The undisputed facts, when viewed in the light most favorable to the State, support the occurrence of a lengthy, “good,” “deep,” “passionate,” “intimate,” “romantic,” and “memorable” French kiss in the bed of the defendant after an overnight stay, and the kiss achieved emotional arousal and was followed by professions of true love and repeated encounters involving the same conduct. Intent may be shown by acts, circumstances, and reasonable inferences. State v. Salcido-Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997). Ordinarily, a person intends all of the usual consequences of his or her voluntary acts. See State v. Acheson, 3 Kan. App. 2d 705, 712-14, 601 P.2d 375, rev. denied 227 Kan. 927 (1979). When the facts of a case can be interpreted to support either the State’s or the defendant’s theory, our standard of review compels us to conclude that the evidence was sufficient. See State v. Graham, 277 Kan. 121, 134, 83 P.3d 143 (2004). We are convinced that a rational jury could have found Stout guilty beyond a reasonable doubt.
Did the District Court Err in Instructing the Jury on the Definition of “Morals” Over the Defendant’s Objection?
Stout next argues that the district court erred in instructing the jury on the definition of the term “morals” over her objection. The record shows that Instruction No. 5 stated: “Morals defined: principles, standards, or habits with respect to right or wrong conduct.” During the jury instructions conference, the following defense objection to Instruction No. 5 was overruled by the court:
“Your Honor, as we discussed in chambers, I would object to this instruction. Again, it’s— PIK does not tell us to define morals. I don’t know — Of course, it doesn’t mean we cannot. My concern is this is more a definition of morals based on sort of conduct in the community, in life as opposed to what I think that the Instruction No. 4 deals with which is sexual morals. And I think that when instructing Instruction No. 4, it’s correct when it talks about morals and the implications to undermine the morals of the child regards to sexual morality as opposed to philosophical morality or — or the like. And that’s why we would object.”
When reviewing challenges to a jury instruction, this court must consider the instructions as a whole and not isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. See Mays, 277 Kan. at 378-79.
On appeal, Stout explains her argument as follows:
“The prejudice to the Defendant here was that the jurors, based on the court’s instruction, could have found the Defendant guilty if they decided diat the kiss was merely something which breached social norms of ‘right or wrong conduct.’ In odier words, if die juiy decided that E.Z.’s romantic conduct with the Defendant somehow compromised E.Z.’s ‘principles [or] standards,’ it could convict the Defendant, even if drey believed tire act did not sexually corrupt E.Z. That danger is especiaEy great here where the act was a kiss, which tire jury would not necessarily find sexual, but might very well find socially ‘wrong,’ especially between two individuals of die same sex or a teacher and a student.”
We agree with Stout. First, the broad dictionary definition of the term “morals” was not required by the Kansas pattern instructions and may have invaded tire province of the jury; morality is often in the eyes of the beholder, and a jury is presumably possessed of normal human attributes that would enable it to ascertain the common meanings of the terms “morals” and “moral senses” for determining what conduct constitutes lewd touching under K.S.A. 2004 Supp. 21-3520, as utilized in Instruction No. 4 (the Wells criteria).
Second, the broad, general morals definition instruction failed to distinguish between recognized types of morality. Application of K.S.A. 2004 Supp. 21-3520 and the Wells criteria for lewd touching requires at least a distinction between the private morality of the victim for purposes of determining whether the touching undermines the morals of the victim, and the public or community morals for purposes of determining whether the touching outrages the moral senses of reasonable persons. See Wells, 223 Kan. 94, Syl. ¶ 2. Black’s Law Dictionary recognizes alternative definitions for the term “morality” as a system of duties or ethics, either private or public, where private morality consists of a person’s ideals, character, and private conduct which are not valid governmental concerns if the individual is to be considered sovereign over body and mind, whereas public morality consists of the ideals or general moral beliefs of a society. Black’s Law Dictionary 1030 (8th ed. 2004). The Wells criteria first employs the term “morals” as being private to the victim in its reference to such conduct undermining the “morals of the child.” The Wells criteria then employs the term “moral senses” as being public in its reference to measuring the public outrage at such conduct. Without specificity or precise direction for the jury, a broad definition of morals was almost certain to mislead the jurors in applying the Wells criteria to the facts before them.
Third, and perhaps most important, the broad definition of morals undoubtedly misled the jury in interpreting and applying Instruction No. 4 (the Wells criteria for lewd touching) in the context of the case at large. The Wells criteria employs the terms “morals” and “moral senses” solely in defining the type of lewd fondling or touching that are proscribed by the statute. Clearly, in determining the guilt or innocence of a defendant charged with lewd touching, it would be inappropriate to enter a finding of guilt merely because, as Instruction No. 5 would suggest, the conduct as a whole is viewed as wrong. K.S.A. 2004 Supp 21-3520(a)(8) inherently re quires that tire conduct involve a teacher and a student; the court’s broad definition of morals without further direction served to permit- — if not foster — a finding of guilt for this reason alone, without the necessity of determining whether the touching itself (not the relationship) undermined the morals of the victim or outraged the moral senses of reasonable persons.
Considering the instructions as a whole, particularly because Instruction No. 5 likely misled tire jury in applying Instruction No. 4, we conclude that the instructions did not properly and fairly state the law, and we have no alternative otirer than to reverse Stout’s conviction and remand for a new trial. On remand, the district court is directed either to avoid defining morals and moral senses or to fashion an instruction that more carefully respects the context of these terms widrin tire Wells criteria! and assures that the jury will not misapply any definitions given.
Stout also challenged her sentence and the constitutionality of the Kansas Sexual Offender Registration Act, K.S.A. 2004 Supp. 22-4901 et seq., as applied, but these issues will not be addressed given our reversal of her conviction.
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Malone, C.J.:
Marcus Gray appeals following his convictions of possession of cocaine, possession of marijuana, driving with a suspended license, failure to signal a turn, and two counts of felony interference with law enforcement. Gray claims: (1) the district court erred in denying his motion to suppress because the law enforcement officer who conducted the traffic stop did so in violation of Kansas statutes prohibiting racial or other biased-based policing; (2) the State failed to present sufficient evidence to support his convictions of felony interference with law enforcement; and (3) the district court lacked jurisdiction to impose a felony sentence for possession of marijuana because the State did not charge Gray with felony possession of marijuana. We agree with Gray that the State failed to present sufficient evidence to support his convictions of felony interference with law enforcement, but we otherwise affirm the district court’s judgment.
Factual and Procedural Background
On November 10, 2013, at approximately 2 a.m., Deputy Brandon Huntley of the Harvey County Sheriff s Office was on patrol when he noticed a silver Ford Focus driving north on Interstate 135 (“1-135”), south of Newton. Huntley later testified that he began following the car simply because it was there. He ran a check on the license plate and discovered that the car was registered to a female living in Salina. Based on Huntley s “extensive experience with drug interdiction,” he knew that illegal drugs were often trafficked on 1-135 from Wichita to Salina.
Huntley continued to follow the car along 1-135, off at Exit 31, and through a roundabout with street lighting, at which point he realized the driver was male. Huntley later testified that in his experience, many drug cases involve someone operating a vehicle not registered in his or her name. The car pulled into a gas station but parked with the gas pumps on the passenger s side. According to Huntley, this was suspicious because he believed the gas cap was on dre driver s side—Huntiey was unaware at the time that a Ford Focus has the gas cap on the passenger s side of the car.
Huntley decided to continue watching the car, so he drove past the gas station and parked down the road where he could still see the car. The driver got out of the car and went into the gas station. It was not until the driver got out of the car that Huntíey realized he was African-American. The driver walked back to the car a few minutes later, looked all around, got into the car, and drove away.
Huntley continued to follow the car and shortly thereafter saw tire driver turn without using a turn signal. At that point, Huntley turned on his emergency equipment and conducted a traffic stop. According to Huntley s written report, which was introduced into evidence at the suppression hearing, Huntley approached the driver and explained the reason for tíre stop. Huntley asked the driver for his driver’s license. The driver stated that he had a Louisiana driver’s license but not in his possession. Huntley asked tire driver if he had any idéntification on him. The driver stated that he did not, but he said that his name was Jimmy Ray Turner. At that point, Huntley smelled a moderate odor of marijuana and a slight odor of an alcoholic beverage emitting from inside the vehicle.
Because the driver did not have any type of identification on him, Huntley asked him to provide his social security number and address as listed on his driver’s license. After rambling off several combinations of numbers, the driver finally provided a social se curity number. He also stated that the address listed on his driver s license was 106 Turner Lane, in Ruston, Louisiana. Huntley told the driver to stay inside his vehicle while he checked his driver s license status.
Huntley returned to his patrol vehicle and requested dispatch to send a second officer to his location because of the circumstances with the stop. Huntley also checked for a driver s license through the State of Louisiana under the name of Jimmy Ray Turner. Huntley was informed that a Louisiana driver s license was issued to Jimmy Ray Turner, but the address and social security number did not match the information that the driver had provided. Also, the physical description of Jimmy Ray Turner provided on the Louisiana drivers license did not match the driver s physical description. At this point, Huntley was confident that the driver had provided him with a false name.
Officer Jon Adlans with the Newton Police Department arrived at the scene a short time later. Pluntley reapproached the driver and explained that the information from tire State of Louisiana did not match the information he had provided. However, the driver insisted that his name was Jimmy Ray Turner. Huntley asked the driver to exit the vehicle and he did. After conducting a quick pat-down to check for weapons, Huntley asked the driver to place his hands behind his back. At that time, the driver quickly spun to his left and attempted to run away. He ran about 20 feet before Huntley and Adlans pulled him to the ground. After being told to stop resisting numerous times, the driver complied and was placed under arrest. At that point, the driver identified himself as Marcus Gray. When Huntley contacted dispatch for information on Gray, he learned that Gray had outstanding out-of-state warrants and a suspended driver’s license. Adkins took Gray to the Harvey County Detention Center and found marijuana and cocaine on him.
On November 13, 2013, the State charged Gray with possession of cocaine with intent to distribute, possession of marijuana, possession of cocaine with no drug tax stamp, driving with a suspended license, failure to signal a turn, and two counts of felony interference with law enforcement. On December 5, 2013, Gray filed a motion to suppress the evidence. The motion generally alleged that Gray had been subject to an “illegal traffic stop and detention.” The motion did not allege illegal racial policing as a ground for suppression of the evidence.
The district court held a hearing on the motion to suppress on January 6, 2014. At the hearing, Huntley and Gray testified. Huntley freely admitted that at the time he pulled Gray over, he was watching for a traffic infraction so that he could conduct a pretex-tual stop; he wanted to see if he might find drugs in the car. However, he maintained that the only reason he stopped the car was Gray s failure to signal a turn.
Gray testified that on the night in question, he was driving his girlfriend’s car to Salina, where he and his girlfriend lived. He noticed Huntley following him on 1-135 and exited at Exit 31 because he was hungry. When he pulled into the gas station, he went into the store and bought a sandwich. Gray further testified that when he came out of the gas station, he looked around to see if die officer who had been following him was still around, but he did not see anyone. According to Gray, he used his turn signal at every turn, including the turn Huntley testified that Gray had failed to use his signal.
At the end of the hearing, the district judge denied the motion to suppress, explicitly stating that he believed that Huntley observed Gray failing to use his turn signal. The district court found that the traffic stop was a permissible pretextual stop. Gray’s counsel then stated there was “one other issue [he wanted] to put on the record” before the hearing closed. Gray’s counsel briefly argued that the stop violated the racial profiling prohibitions in K.S.A. 2014 Supp. 22-4606 and K.S.A. 2014 Supp. 22-4609. Without much explanation, Gray’s counsel asserted that racial profiling rendered the pretextual stop illegitimate. The district court rejected Gray’s argument and found from the evidence that Huntley did not stop Gray because of his race. The judge specifically noted that Huntley did not know that Gray was black until he stopped at the convenience store. The judge concluded by stating: “I find Deputy Huntley to be credible. I don’t find there’s anything in the record Mr. Gray got stopped because he happened to be a black man.”
The parties agreed to proceed to a bench trial on the evidence submitted at the hearing on the motion to suppress—Huntley’s and Gray’s testimony, Huntley’s police report, and maps on which Huntley and Gray had indicated their route through Newton—as well as a Kansas Bureau of Investigation (KBI) laboratory report. In a pleading entitled “Trial Stipulation of Facts,” signed by both parties, Gray “specifically continue[d] to object to the admission of said evidence based on said motion, as well as die evidence and arguments made at the suppression hearing.”
The bench trial was held on March 25,2014. The State dismissed the charge of possession of cocaine with no tax stamp. In addition, for the purposes of convicting Gray of possession of marijuana as a second-time offense, a felony, the State submitted into evidence a journal entry from Louisiana showing Gray’s prior convictions of possession and distribution of marijuana. Gray stipulated to the documents. Similarly, Gray had no objection to the State’s submission into evidence of a document from the State of Louisiana showing that Gray’s driver’s license was suspended on the date in question.
After the stipulated evidence was submitted, Gray argued that the district court should reduce the first charge from possession of cocaine with intent to distribute to simple possession of cocaine. The district court agreed and found Gray guilty of possession of cocaine, felony possession of marijuana, driving with a suspended license, failure to signal a turn, and two counts of felony interference with law enforcement. On May 14, 2014, the district court sentenced Gray to a controlling term of 26 months’ imprisonment but granted probation with community corrections for 12 months. Gray timely appealed the district court’s judgment.
Motion to Suppress
Gray first claims the district court erred in denying his motion to suppress. Specifically, he claims that the traffic stop violated K.S.A. 2014 Supp. 22-4609, which prohibits racial or other biased-based policing. Gray further argues that in tire absence of a statutorily prescribed mechanism for enforcement of K.S.A. 2014 Supp. 22-4609 in criminal proceedings, this court should order a hearing similar to those used to consider challenges under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which prohibits excluding potential jurors solely on account of their race. Gray advocates the following test: “Whenever an officer makes a pretextual stop of a member of a protected class, the burden should shift to the state to show some race-neutral justification, other than the basis for the pretextual stop itself, for investigating a particular person or vehicle.”
In response, the State first claims that Gray failed to preserve this issue for appeal. The State also argues that the Kansas statutes prohibiting racial or other biased-based policing do not provide constitutional search and seizure protections subject to the exclusionary rule. Instead, the State argues that the statutes provide a civil remedy for any violation. Finally, the State argues that even if the exclusionary rule applies to violations of the Kansas statutes prohibiting racial or other biased-based policing, its application would not be appropriate here because the district court found that Huntley did not stop Gray because of his race, and this finding is supported by substantial competent evidence.
An appellate court uses a bifurcated standard to review a district court’s decision on a motion to suppress. 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. City of Atwood v. Pianalto, 301 Kan. 1008, 1012, 350 P.3d 1048 (2015). In addition, to the extent that this issue requires interpretation of Kansas’ racial profiling statutes, this court reviews the issue de novo. See State v. Hobbs, 301 Kan. 203, 206, 340 P.3d 1179 (2015).
K.S.A. 2014 Supp. 22-4609 prohibits racial or other biased-based policing to justify a traffic stop, investigatory detention, search, or arrest. The statute provides:
“It is unlawful to use racial or other biased-based policing in:
“(a) Determining the existence of probable cause to take into custody or to arrest an individual;
“(b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or die investigatory stop of a vehicle; or
“(c) determining the existence of probable cause to conduct a search of an individual or a conveyance.”
K.S.A. 2014 Supp. 22-4606(d) defines “racial or other biased-based policing” as
“the unreasonable use of race, ethnicity, national origin, gender or religion by a law enforcement officer in deciding to initiate an enforcement action. It is not racial or other biased-based policing when race, ethnicity, national origin, gender or religion is used in combination with other identifying factors as part of a specific individual description to initiate an enforcement action.”
The State first claims that Gray failed to preserve this issue for appeal. This claim presents a close call. Gray’s motion to suppress did not explicitly allege illegal racial policing as a ground for suppression. Under the circumstances, the State could not have been faulted for failing to present sufficient evidence to rebut the claim and prove that the stop was lawful. But at the conclusion of the hearing on the motion to suppress, Gray’s counsel expressly argued that the stop violated the racial profiling prohibitions in K. S .A. 2014 Supp. 22-4606 and K.S.A. 2014 Supp. 22-4609. Based on the evidence that the State had presented, the district court addressed the argument and made specific findings overruling Gray’s claim. Thus, we conclude that Gray properly preserved his claim for appeal.
Remedy for violation ofKS.A. 2014 Supp. 22-4609
Before we address whether K.S.A. 2014 Supp. 22-4609 was violated in this case, we will address the remedy available to a criminal defendant in the event of a violation of the statute. The State correctly points out that K.S.A. 2014 Supp. 22-4611 provides that a person who believes he or she was subjected to improper racial or other biased-based policing may file a complaint with the law enforcement agency. The statute further sets forth the procedure to review that complaint and ultimately states that upon disposition of the complaint, “tire complainant shall have a civil cause of action in the district court” against the law enforcement officer, agency, or both “and shall be entitled to recover damages if it is determined by the court that such officer or agency engaged in racial or other biased-based policing.” K.S.A. 2014 Supp. 22-4611(c). The State argues that the civil remedy negates the need for application of a remedy in the criminal proceedings.
The State also argues that the Kansas statutes prohibiting racial or other biased-based policing do not provide for constitutional search and seizure protections subject to the exclusionary rule. “The exclusionary rule is a judicially created remedy, designed to deter the government from engaging in unconstitutional conduct.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 640, 176 P.3d 938 (2008), abrogated on other grounds Pianalto, 301 Kan. at 1012-14. The rule serves to deter or prevent unconstitutional conduct by law enforcement officers by giving notice to the officers that any useful evidence they might obtain will be barred in a later criminal prosecution. See State v. Turner, 257 Kan. 19, 21, 891 P.2d 317 (1995). Although Gray possibly could have asserted a claim that the traffic stop violated his constitutional rights, he did not do so. Instead, Grays claim focuses on the language of the Kansas statutes prohibiting racial or other biased-based policing. The State is correct that because Gray is not asserting a violation of his constitutional rights, the judicially created exclusionary rule does not provide a remedy for suppression of the evidence in his criminal case.
But in Kansas, the suppression of illegally seized evidence is governed by statute and Gray does not need to rely on the judicially created exclusionary rule that applies only to constitutional violations. The Kansas Code of Criminal Procedure provides that a defendant aggrieved by an unlawful search and seizure may move to suppress the evidence. K.S.A. 22-3216(1). As Gray notes, a traffic stop is a seizure. See Pianalto, 301 Kan. at 1011. Under K.S.A. 2014 Supp. 22-4609, it is unlawfid to use racial policing in “(b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle.” Thus, if Huntley s actions violated K.S.A. 2014 Supp. 22-4609(b), as Gray argues, the plain language of K.S.A. 22-3216(1) authorizes Gray to seek sup pression of the evidence seized as a result of the unlawful stop. See State v. Vrabel, 301 Kan. 797, 810, 347 P.3d 201 (2015) (noting that the statutory right to suppress evidence is not restricted to defendants who are aggrieved by an unconstitutional search and seizure).
In sum, although the judicially created exclusionary rule does not provide a remedy for Gray in this instance, the plain language of K.S.A. 22-3216(1) authorizes Gray to seek suppression of the evidence obtained as a result of the claimed unlawful traffic stop. Moreover, the fact that K.S.A. 2014 Supp. 22-4611(c) provides a civil remedy for Gray for a violation of racial or other biased-based policing does not preclude Gray from pursuing his available remedy in the criminal proceedings.
Was K.S.A. 2014 Supp. 22-4609 violated?
Gray contends that Huntley violated K.S.A. 2014 Supp. 22-4609, which prohibits the use of racial or other biased-based policing. Simply put, Gray claims that Huntley began following him and ultimately stopped his car, at least in part, because he is African-American. Gray further seeks the adoption by Kansas courts of a Batson-like procedure to be followed when racial policing claims are raised under the Kansas statutes. See Batson v. Kentucky, 476 U.S. 79. Gray advocates the following test: “Whenever an officer makes a pretextual stop of a member of a protected class, the burden should shift to the state to show some race-neutral justification, other than tire basis for the pretextual stop itself, for investigating a particular person or vehicle.”
The State responds that the adoption of a Batson-like procedure to resolve racial policing claims is unnecessary. The State points out that the district court heard the evidence and specifically found that Huntley did not stop Gray because of his race. The State argues that the district court’s factual finding is supported by substantial competent evidence in the record.
At Gray’s suppression hearing, Huntley testified that he began following Gray’s car simply because it was there and because he knew from his experience that illegal drugs were often trafficked on 1-135. Huntley explained that he realized the driver of the car was male when they drove through a roundabout with street lighting. Gray s counsel asked, “Were you able to determine at that point in time that the driver was not only male, but African-American?” Huntley replied, “No.” Later, Huntley confirmed that he only realized Gray s race at the gas station when he got out of the car. Still later, the following exchange occurred between Gray’s counsel and Huntley:
“Q. When you saw there was a black male getting out of the car, did that change your level of suspicion?
“A. No, sir.
“Q. Didn’t bother you at all this was now a black male as opposed to just a male?
“A. No, sir.
“Q. . . . So, each time you learned something new about what the defendant did or what he looked like or where he was, your level of criminal suspicion increased; is that true?
“A. No, not what he looked like, just on his behaviors and his activities.”
At the end of the hearing, in response to Gray’s argument that the stop violated the Kansas statutes prohibiting racial or other biased-based policing, the district court stated:
“THE COURT: Okay. I didn’t find anythere was nothing on the record that I heard that would lead me to believe that Mr. Gray was stopped because he was black. In fact, he had started to be followed because of some of these other factors before Deputy Huntley knew he was black because he didn’t discover he was black until the convenience store or thereabouts or shortly thereafter. He did want to stop the car, no question about it. He wanted to stop the car because of other reasons . . . but they didn’t have anything to do with Mr. Gray being black. At least, I heard nothing on the record to suggest to me that that’s why.
“I find Deputy Huntley to be credible. I don’t find there’s anything in tire record Mr. Gray got stopped because he happened to be a black man.”
We tend to agree with the State that the adoption of a Batson-like procedure to resolve racial policing claims is unnecessary. Under &e Kansas Code of Criminal Procedure, the State bears the burden of proof for a suppression motion and the prosecution must provide evidence to the district court to prove the lawfulness of the search and seizure. K.S.A. 22-3216(2). Thus, when a defendant files a motion to suppress and claims that a Kansas law enforcement officer unlawfully used racial or other biased-based policing, the burden is on the State to present evidence to the district court establishing that the officer’s conduct was lawful and tire statute was not violated.
The determination of whether Huntley violated K.S.A. 2014 Supp. 22-4609 depended almost exclusively on whether the district judge found credible Huntley’s testimony that race was not a factor in his stopping Gray. In his brief, Gray warns that “[n]o officer is going to affirmatively admit that he or she made a pretextual stop based on race.” That assertion may be true, but a district court is uniquely situated to evaluate the credibility and demeanor of witnesses testifying about their motivations to determine whether those motivations were improperly based on race. The district court is certainly not required to believe an officer’s testimony that race was not a factor in a traffic stop if other evidence supports a conclusion that the officer’s motivations were improperly based on race. Kansas judges make such witness credibility determinations at suppression hearings on a routine basis in courtrooms across the state.
We hold that in a hearing on a motion to suppress evidence, whether a law enforcement officer unlawfully used racial or other biased-based policing is a question of fact to be determined by the district court. As in any motion to suppress, the State bears the burden of proving the lawfulness of the search and seizure. K.S.A. 22-3216(2). On appeal, the appellate court reviews the district court’s factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. Pianalto, 301 Kan. at 1012.
Huntley stopped Gray’s car because he failed to signal a turn. “A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual.” State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006); see Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Generally, an officer’s subjective reason for the detention is not relevant when the traffic stop is based on reasonable suspicion that a crime has been committed. See Whren, 517 U.S. at 813; State v. Thomp son, 284 Kan. 763, 804-07, 166 P.3d 1015 (2007). But if the evidence establishes that an officer’s pretextual stop is motivated by racial or other biased-based policing, then such conduct would run afoul of K.S.A. 2014 Supp. 22-4609. See also Whren, 517 U.S. at 813 (“We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.”) But that is not the case before this court.
Here, the district court found Huntley’s testimony credible that he did not stop Gray because of his race. Without reweighing the evidence or assessing the credibility of the witnesses, we conclude that the district court’s factual findings are supported by substantial competent evidence in the record. The State met its burden of establishing that the traffic stop was lawful and that K.S.A. 2014 Supp. 22-4609 was not violated. Thus, the district court did not err in denying Gray’s motion to suppress.
Sufficiency of the Evidence to Support Convictions of Felony Interference With Law Enforcement
Next, Gray claims there was insufficient evidence to support his convictions of felony interference with law enforcement because the State failed to prove that Huntley believed he was investigating a felony at the time Gray interfered with law enforcement. The State responds that it presented sufficient evidence to support the convictions.
“When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.] An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. [Citation omitted.]” State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211 (2015).
The State charged Gray with two counts of felony interference with law enforcement, one pursuant to K.S.A. 2013 Supp. 21-5904(a)(1)(B)—based upon Gray’s giving a false name—and one pursuant to K.S.A. 2013 Supp. 21-5904(a)(3)—based upon Gray’s attempt to run from officers. Interference with law enforcement in violation of K.S.A. 2013 Supp. 21-5904 was previously codified at K.S.A. 21-3808. Under the prior statute, the crime was known as obstructing legal process or official duty.
Interference with law enforcement under K.S.A. 2013 Supp. 21-5904(a)(1)(B) was a “[cjlass A nonperson misdemeanor in the case of a misdemeanor” and a “severity level 9, nonperson felony in the case of a felony.” K.S.A. 2013 Supp. 21-5904(b)(2). Similarly, interference with law enforcement under K.S.A. 2013 Supp. 21-5904(a)(3) was a “[s]everity level 9, nonperson felony in the case of a felony, or resulting from parole or any authorized disposition for a felony” and a “class A nonperson misdemeanor in the case of a misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case.” K.S.A. 2013 Supp. 21-5904(b)(6).
More simply put, whether interference with law enforcement or obstructing legal process or official duty is a felony or misdemeanor depends on whether the officer is attempting to carry out an official duty related to a felony or a misdemeanor. See State v. Hudson, 261 Kan. 535, 538-39, 931 P.2d 679 (1997) (“The touchstone for the classification of tire offense is the reason for the officer s approaching the defendant who tiren flees or otherwise resists . . . .”); State v. Lundquist, 30 Kan. App. 2d 1148, 1154, 55 P.3d 928 (2002) (“[W]hat the officer believes at the time of pursuing a suspect determines if obstruction of official duty will be charged as a misdemeanor or felony.”), rev. denied 275 Kan. 967 (2003). This case provides a good example of why this test is not always easy to apply.
Gray contends that the State failed to prove that Huntley believed he was investigating a felony at the time Gray interfered with law enforcement. The State responds that there was sufficient evidence because according to Huntley s police report, which was admitted into evidence at the bench trial on stipulated facts, he smelled marijuana and alcohol when he contacted Gray during the traffic stop. At that point, the State claims, the “investigation changed from a mere traffic stop to an investigation for possession of controlled substances and driving under the influence.”
At the bench trial, the evidence before the district court was (1) Huntley’s police report, (2) a KBI laboratory report, and (3) “[t]he evidence and exhibits presented at the suppression hearing,” which consisted of testimony, Huntley’s police report, and two maps on which Gray and Huntley diagrammed the events of the night in question. As the State contends, Huntley’s report stated that at the time Gray provided him with the false name, Huntley “could smell a moderate odor of marijuana emitting from inside the vehicle” and “detected a slight odor of an alcoholic beverage emitting from inside the vehicle” as well.
However, there is no evidence to support the State’s assertion that the slight and moderate odors of alcohol and drugs led Huntley to believe he was investigating potential felony crimes. At the suppression hearing, Huntley did not testify as to any event that occurred after the traffic stop, so there is no testimony as to his beliefs about crimes being committed once he made the stop, which he explicitly testified was based solely on Gray’s failure to signal a turn. Similarly, although Huntley’s report indicated that he believed the driver was giving him a false name and therefore, “there was something serious the driver was hiding,” the report does not identify any felony Huntley suspected Gray might have committed. Of course, Huntley had a hunch all along that Gray might be engaged in drug trafficking, but this hunch was not sufficient to justify the traffic stop.
Whether interference with law enforcement is a felony or misdemeanor depends on whether the officer was investigating a felony or misdemeanor offense at the time of die interference. See Hudson, 261 Kan. at 538-39. Here, there is no evidence that Huntley was investigating a felony. Had Huntley expressly testified that he was investigating a felony when he smelled the odor of marijuana and an alcoholic beverage emitting from inside the vehicle, such testimony would have supported Gray’s conviction of felony interference with law enforcement. However, Huntley never provided such testimony.
In its brief, the State claims two unpublished opinions are instructive. In both cases, however, this court affirmed convictions of felony obstruction of official duty where the officer in question was investigating a crime that could have been charged as either a felony or misdemeanor based on criminal history. See State v. Porter, No. 85,223, slip op. at 9-10 (Kan. App.) (unpublished opinion) (investigating a theft), rev. denied 272 Kan. 1422 (2001); State v. Lowe, No. 78,631, slip op. at 2-3 (Kan. App. 1998) (unpublished opinion) (investigating driving under the influence), rev. denied 266 Kan. 1113 (1999). Porter and Lowe are distinguishable. Had Huntley been investigating a theft or a DUI that could be charged as either a felony or misdemeanor based on criminal history, such evidence would have supported a conviction of felony interference with law enforcement. However, Huntley was not investigating a theft or a DUI.
In summary, the State failed to provide evidence that Huntley was investigating a felony at the time Gray interfered by giving a false name and trying to run away. Huntley explicitly testified that the traffic stop was based solely on Gray s failure to signal a turn, which is not a felony. Although Huntley testified that he smelled the odor of marijuana and an alcoholic beverage emitting from inside the vehicle, he never stated that this evidence raised the level of the traffic stop to a felony investigation. Even when the evidence is considered in a light most favorable to the State, we conclude that the State failed to provide sufficient evidence for a rational factfinder to have found Gray guilty beyond a reasonable doubt of two counts of felony interference with law enforcement. However, the evidence was sufficient to support Gray’s convictions of two counts of misdemeanor interference with law enforcement. Thus, we reverse Gray’s convictions of two counts of felony interference with law enforcement and remand with directions for the district court to resentence Gray for the misdemeanor convictions.
Jurisdiction to Impose Felony Sentence for Possession of Marijuana
Finally, Gray claims the district court lacked jurisdiction to impose a felony sentence for possession of marijuana because the State did not charge him with felony possession of marijuana. Specifically, Gray argues that die State’s failure to allege in the complaint that he previously had been convicted of possession of marijuana deprived die district court of jurisdiction to sentence him for the crime of felony possession of marijuana because die felony classification was based on his prior conviction. The State argues that the district court had jurisdiction to convict Gray of and sentence him for felony possession of marijuana based upon a prior conviction.
Gray does not suggest a standard of review for this issue. Perhaps this failure is because, as the State points out, Gray failed to raise the issue in the district court and raises it now for the first time on appeal. Nevertheless, because Gray alleges a jurisdictional defect, we will address the issue. See State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014) (subject matter jurisdiction can be raised at any time). Furthermore, whether a complaint or information is sufficient to confer subject matter jurisdiction is a question of law subject to an unlimited standard of review. State v. Gonzales, 289 Kan. 351, Syl. ¶ 7, 212 P.3d 215 (2009).
Gray does not contend that he did not have a prior conviction for possession of marijuana; he argues instead that the State’s failure to charge felony possession left the district court without jurisdiction to impose a felony sentence. The record belies this contention. In Count 2 of the complaint, the State charged Gray with “feloniously and intentionally” possessing marijuana “[i]n violation of K.S.A. 2011 Supp. 21-5706(b)(3), Unlawful Possession of a Controlled Substance, a drug seventy 5 felony.” (Emphasis added.) Possession of marijuana is a class A nonperson misdemeanor, except that it is a drug severity level 5 felony if the defendant has a prior conviction of possession of marijuana, as Gray did here. See K.S.A. 2014 Supp. 21-5706(c)(2). Contrary to Grays argument, the State clearly charged him with a felony.
This court previously has rejected an argument similar to the one Gray is making here. In Thompson v. State, 32 Kan. App. 2d 1259, 1268, 96 P.3d 1115 (2004), rev. denied 278 Kan. 852 (2005), the defendant argued that the State’s failure to allege his prior convictions in the complaint prevented those convictions from being used to elevate his possession of methamphetamine charge from a severity level 4 to a severity level 1 offense. The defendant in Thompson was charged and sentenced under the previous codification of the statute under which Gray was charged and sentenced. See K.S.A. 65-4160; K.S.A. 2014 Supp. 21-5706.
As this court noted in Thompson, our Supreme Court has recognized the “distinction between prior convictions that were an element of the offense and prior convictions that were used to establish the class of felony or the penalty to be imposed in a case.” 32 Kan. App. 2d at 1268; see State v. Masterson, 261 Kan. 158, 162, 929 P.2d 127 (1996); State v. Loudermilk, 221 Kan. 157, 159, 557 P.2d 1229 (1976). The Thompson court further noted that prior convictions under a self-contained habitual criminal statute “do not constitute elements of the charged offense and ‘are pertinent only to the sentence which shall be rendered in the event of a conviction/ [Citation omitted.]” 32 Kan. App. 2d at 1268. The Thompson court concluded that although the State must set forth the severity level of the offense when charging a crime under a habitual criminal statute, it need not allege the prior convictions. 32 Kan. App. 2d at 1269.
Here, the State clearly charged Gray with possession of marijuana, a severity level 5 felony—that severity level requires a prior conviction. See K.S.A. 2014 Supp. 21-5706(c)(2). The complaint provided Gray with proper notice of the severity level of the felony charge, and the district court had jurisdiction to impose a felony sentence for Gray’s conviction of possession of marijuana.
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Bruns, J.:
This is an interlocutory appeal arising out of a water appropriations action in Haskell County. Specifically, this action involves the priority of water rights between a senior right holder and a junior right holder to use water from the Ogallala Aquifer. The district court granted a temporary injunction in favor of the senior right holder and ordered the junior right holder to refrain from pumping water from two wells located on the junior right holder s land during the pendency of this action. On appeal, the junior right holder seeks to vacate the temporary injunction. Because we conclude that the district court did not abuse its discretion, we affirm the district court’s decision to grant a temporary injunction.
Facts
Historical Background
On March 14, 2005, Garetson Brothers, a Kansas general partnership, filed a complaint with the Kansas Department of Agriculture’s Division of Water Resources (DWR) alleging that two junior water rights located on neighboring land had impaired its senior water right. At that time, Garetson Brothers owned a tract of land in Haskell County upon which a single well—used for crop irrigation—is located. A prior owner of Garetson Brothers’ land had filed for and received a vested water right in the well on September 12, 1950. This vested right is numbered HS-003.
The first neighboring well at issue in this action was approved in 1964 and was given an appropriation water right numbered 10,467. The second neighboring well was approved in 1976 and was given an appropriation water right numbered 25,275. Both of these wells are also used for the irrigation of crops. All of the wells are located in Groundwater Management District 3 in Southwest Kansas, overlying the Ogallala Aquifer. The Ogallala Aquifer is part of the High Plains Aquifer System spanning eight Midwestern states.
DWR immediately began investigating the complaint by installing water level monitoring equipment and gathering data to help determine the degree of well-to-well impairment—if any—occurring between the water rights at issue. In addition, DWR began investigating three other neighboring wells that pulled water from the same source. In 2007, however, Garetson Brothers withdrew the complaint. In their letter withdrawing the complaint, Garetson Brothers wrote:
“During the nearly two years since we filed for relief, our goal has been to bring attention to the urgent state of decline of tire Ogallala Aquifer in [Southwest Kansas]. Rather than being a positive catalyst for change in tire effort to extend the useful life of the aquifer as a whole we have been perceived as selfishly damaging our neighbors for our own gain.”
Despite the withdrawal of the complaint, DWR continued to monitor tírese wells and record data.
Filing of Present Action
On May 1, 2012, Garetson Brothers filed a petition in Haskell County District Court, alleging impairment of its senior water right by Kelly and Diana Unruh—who owned water rights 10,467 and 25,275 at that time. The Unruhs filed an answer on June 11, 2012, in which they admitted to owning the two junior water rights but denied the allegations of impairment. In addition, the Unruhs asserted a counterclaim against Garetson Brothers, claiming that the senior water right had been lost when the well on the Garetson Brothers’ land had been redrilled, allegedly changing the water s point of diversion. The Unruhs also alleged that the new well was impairing their junior water rights.
On January 31, 2013, the district court appointed DWR as the referee for fact investigation and report pursuant to K.S.A. 82a-725. In a preliminary report filed with the district court on April 3, 2013, DWR concluded that the Garetson Brothers’ senior water right “has been substantially impaired by operation of [Junior] Water Rights 10,467 and 25,275[,]” as well as by other neighboring water rights. The preliminary report stated, however, that more testing and data were needed to determine the extent of the impairment.
First Temporary Injunction
After receiving DWR’s preliminary report, the Garetson Brothers filed a motion for temporary injunction. On the morning of May 16, 2013, prior to the commencement of an evidentiary hearing on the motion, counsel for the Unruhs disclosed for the first time that his clients had sold the land and the water rights to American Warrior, Inc. (AWI), a gas compressor packager. Because AWI had previously been represented by District Judge Bradley E. Am-brosier when he was in private practice, he stepped down from the case and the hearing was continued.
Ultimately, District Judge Clinton B. Peterson heard the motion for temporary injunction on May 20, 2013. During the hearing, it was disclosed that the property and junior water rights had been sold to AWI on May 30, 2012, which was before the Unruhs filed their answer in this case. Upon learning that the sale had not been disclosed for nearly a year while the lawsuit continued to move forward, the district judge appropriately noted her concern over “the Defendants’ and their attorney’s lack of candor, both to the plaintiff and the Court, regarding the true owner of this property.”
The day after the evidentiary hearing, the district court granted the Garetson Brothers’ motion for temporary injunction. In doing so, the district court applied the principle of “first in time, first in right” and found that AWI’s junior water rights were substantially impairing tire Garetson Brothers’ senior water right. Accordingly, the district court ordered “the defendants, their successors, their tenants, and their agents ... to refrain from pumping Well 10,467 and Well 25,257 for the pendency of this matter or until ordered otherwise by this Court.” Furthermore, the district court ordered that Cecil O’Brate—the owner and chief executive officer of AWI—be joined as a defendant.
On August 5,2013, Garetson Brothers filed an amended petition adding AWI and Rick Koehn—the tenant farming on AWI’s land— as defendants. Subsequently, the district court dismissed O’Brate as a party. Moreover, on October 14, 2013, Garetson Brothers transferred its senior water right to Foreland Real Estate, LLC (FRE), and FRE subsequently joined the lawsuit as a named plaintiff under K.S.A. 2014 Supp. 60-221.
In an order entered on December 2, 2013, District Judge Linda P. Gilmore vacated the initial temporary injunction because Koehn had not been joined as a party at the time it was entered. In addition, the district court directed DWR to “continue to investigate and report upon any or all of the physical facts concerning the water rights referenced in this case” pursuant to the procedure set forth in K.S.A. 82a-725. Specifically, the district court ordered:
“The report shall set forth findings of fact in regard to the degree HS-003 is being impaired by water rights 10,467 and 25,257. The report shall set forth the opinions of DWR regarding whether any such impairment... [is] a substantial impairment to HS-003. If DWR concludes substantial impairment to HS-003 exists, DWR shall advise as to recommended remedies to curtail [the] substantial impairment to HS-003 and explain why these remedies are recommended.”
DWR’s Final Report
Prior to tire filing of the final report with tire district court, the parties received a copy of the report from DWR and were given the opportunity to file objections. Both FRE and AWI filed objections with DWR as well as exceptions with the district court as permitted by K.S.A. 82a-725. Although it does not appear that Koehn filed an objection with DWR, he did file exceptions with the district court that generally followed those asserted by AWI.
DWR filed its final report with the district court on March 31, 2014. In the 30-page report—including an executive summary and attachments—DWR sets forth its findings, conclusions, and potential remedies. The final report notes that for several decades there has been a substantial decline in groundwater in the area of Southwest Kansas where the land owned by FRE and AWI is located. In fact, the average annual rate of water extraction is 1,200 to 1,500 acre-feet per year while the average rate of water recharge is less than 100 acre-feet per year. As a result, scientists from the Kansas Geological Survey have concluded that “if recent practices continue, well operators in the area are facing the imminent end of the productive life of the isolated compartment of [the Ogallala] aquifer that they share.”
According to the final report, DWR examined six water rights: FRE’s senior water right, AWI’s two junior water rights, and three other neighboring junior water rights. The final report notes that a seventh junior water right—number 8,157—tises water from two wells: the well authorized under HS-003, and another well 1 mile away. However, DWR found that it is unlikely that this junior water right affects FRE’s well because it appears to be pumping water from a different compartment of the Ogallala Aquifer.
Although FRE’s senior water right—HS-003—is authorized to pump up to 240 acre-feet of water at a rate of 600 gallons per minute for the irrigation of crops, DWR’s testing revealed that the well’s maximum sustained rate of pumping under current conditions is only 404 gallons per minute. DWR also found that “only one other well can be allowed to irrigate crops concurrently with File No. HS 003, and then only under a strict time and rate schedule that may prove impractical to implement.” Accordingly, DWR concluded that FRE’s senior water right “has been substantially impaired by operation of AWI’s Water rights 10,467 and 25,275” and other neighboring water rights.
DWR also concluded that when all six water rights are being operated, AWI’s two junior water rights account for approximately half of the impact on FRE’s senior water right. Further, DWR concluded that the impact of AWI’s junior water rights on FRE’s senior water right is more immediate because of the close proximity of AWI’s wells to FRE’s well. In addition, DWR determined that if FRE’s senior water right is to be protected, the pumping of water by AWI and the other junior water right holders must be significantly curtailed.
Finally, DWR suggested two possible remedies to ensure FRE’s ability to pump 240 acre-feet of water at a rate of 404 gallons per minute. First, DWR suggested that FRE’s senior water right could be protected if only one of the other neighboring junior water right holders—to be determined on the basis of seniority or by distance from FRE’s well—is allowed to continue pumping water on a restricted basis. Second, DWR suggested that FRE’s senior water right could be protected “by curtailing all of the Other Neighborhood Water Rights.”
Second Temporary Injunction
Following the completion of DWR’s final report, FRE filed a second motion for temporary injunction with the district court, and the district court held an evidentiary hearing on April 30, 2014. At the beginning of the hearing, FRE moved for the admission of DWR’s final report into evidence. In response, AWI and Koehn objected to its admission because the report was subject to numerous pending objections filed by the parties and based on an alleged lack of foundation. After considering the objections, the district court admitted the final report into evidence for the purposes of the temporary injunction hearing pursuant to K.S.A. 82a-725. The district court noted, however, that AWI and Koehn would have the opportunity to present evidence to rebut points set forth in the report.
A review of the 273-page transcript from the temporary injunction hearing reveals that the parties presented the testimony of six witnesses and admitted numerous exhibits into evidence. The witnesses included Jay and Jarvis Garetson; Mike Meyer, who is the water commissioner stationed at DWR’s Garden City office; Rick Koehn; Mark Rude, who is a geologist and executive director of Southwest Kansas Groundwater Management District No. 3; and Kenneth Rainwater, Ph.D., who is a civil engineering professor and AWI’s expert. We will briefly summarize the evidence presented at the hearing.
Jay and Jarvis Garetson testified that FRE’s ability to use water as authorized under its senior water right has been depleted, which has had a negative impact on its crops. In addition, the Garetsons testified that HS-003 was able to pump water at a rate of 802 gallons per minute in 2002, but by 2006 it could only pump at a rate of 350 gallons per minute. The Garetsons also testified that the best feature of FRE’s land was its senior water right, and they suggested that failing to protect its seniority would devastate the land’s value.
During his testimony, Rude discussed the role of Ground Water Management District No. 3. He noted the significant decline of the Ogallala Aquifer over the years as well as the lowering of the water table in Haskell County. Rude also discussed the history of HS-003 as a vested water right that has a priority established prior to the enactment of the KWAA. But he had not performed a study on HS-003 so he could not give specifics about its use. In addition, he clarified that a water right is not a well itself but is a “rate, quantity, point of diversion, place of use, use made of water, and priority.”
AWI’s expert, Dr. Rainwater, testified that he did not believe that the district court should rely on the math in DWR’s final report to decide how much a particular water right should be allowed to pump. Dr. Rainwater opined that the equation DWR used was based on an assumption about a hypothetical aquifer that did not work for the complex alluvial aquifer situations found in the High Plans Aquifer system. He did not, however, challenge DWR’s factual data. Dr. Rainwater testified that HS-003 experiences a significant drawdown even when no other wells are pumping, and he noted that all wells create their own drawdown when turned on.
According to Dr. Rainwater, the well on FRE’s land was placed at a bad site, and he suggested that the screen on the new well limited its ability to pull in water because it is much smaller than the screens on neighboring wells. Although he felt that moving HS-003’s well could give FRE access to more water, he conceded that the well is legally allowed to be where it is located. Dr. Rainwater predicted that, even if all neighboring wells were shut off for the summer of 2014, HS-003 would still struggle as it had in recent summers. Ultimately, Dr. Rainwater rendered the opinion that HS-003 is not unreasonably impaired.
On May 5, 2014, the district court issued its decision to grant a temporaiy injunction in favor of FRE. Specifically, the district court concluded that FRE “is likely to succeed on the merits of [its] claim, which is, essentially [its] senior water right is being impaired by an appropriator with a later priority of right.” Relying on the Black’s Law Dictionary definition, the district court found: “Impair means to weaken, to make worse, to lessen in power, diminish, or relax or otherwise affect in an injurious manner.” See Black’s Law Dictionary 752 (6th ed. 1990).
The district court further found that FRE would suffer irreparable harm if its “first in time water right is being depleted year after year as a result of ongoing impairment”; that “the threatened injury to [FRE] outweighs the alleged damage to [AWI] as [FRE’s] first in time water right continues to be depleted at a rate that would take years to recharge”; that “knowledge that first in time water rights will have precedent fosters certainty and allows remedies that hopefully will slow down the depletion of the aquifer”; and that the law does not provide an adequate remedy because the impairment “is continuous and ... is of such character [that FRE] cannot be compensated by any ordinary standard of value or damages.” Accordingly, the district court ordered AWI and its tenant not to pump water from its wells during the pendency of this action.
Following the issuance of the injunction, AWI moved the district court for more specific findings concerning the injunction’s terms. AWI also asked the district court to stay the injunction pending appeal. Subsequently, the district court clarified that the parties were not to pump water from the wells located on AWI’s property once FRE posted a bond. Moreover, the district court set the amount of the bond at $299,438 and denied the motion to stay. On May 30, 2014, FRE filed the bond, thereby triggering the temporary injunction.
Analysis
Issues Presented and Standard of Review
The ultimate issue in this interlocutory appeal is whether the district court abused its discretion in issuing a temporary injunction. In addition, there are several preliminary issues that we will address before we reach the ultimate issue. The first two preliminary issues involve evidentiary matters—the admission of DWR’s final report into evidence and the consideration given to certain evidence presented by AWI. The third preliminary issue we will address is whether the district court erred in interpreting the language of K.S.A. 82a-717a.
Kansas Water Appropriation Act, K.S.A. 82a-701 et seq.
Until the late 1800s, Kansas followed common-law rules relating to water rights. As early as 1886, however, the Kansas Legislature began to shift to the appropriation doctrine. See L. 1886, ch. 115, sec. 1. “ The appropriation doctrine is based upon the premise that all unused water belongs to all of the people of the state. The first person to divert water from any source and use it for beneficial purposes has prior right thereto. In other words, first in time, first in right.’ ” (Emphasis added.) Clawson v. Kansas Dept. of Agriculture, 49 Kan. App. 2d 789, 797, 315 P.3d 896 (2013) (quoting F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 228, 630 P.2d 1164 [1981]).
In 1945, the legislature enacted tire Kansas Water Appropriation Act (KWAA), K.S.A. 82a-701 et seq. See G.S. 1935 (1945 Supp.), 82a-701 etseq.; L. 1945, ch. 390; Peck, Groundwater Management in Kansas: A Brief History and Assessment, 15 Kan. J.L. & Pub. Pol’y (No. 3), 441, 442-43 (Spring 2006). The KWAA dedicates all water in Kansas “to the use of tire people of the state, subject to the control and regulation of the state” in the manner set forth in the Act. K.S.A. 82a-702. Moreover, the KWAA authorizes the appropriation of the water for beneficial use, subject to vested rights. K.S.A. 82a-703. Although “beneficial use” is not defined in the KWAA, K.A.R. 5-l-l(o) lists various beneficial uses of water—including irrigation.
Under the KWAA, there are two types of water rights. K.S.A. 2014 Supp. 82a-701(d) defines a “vested right” as “the right of a person under a common law or statutory claim to continue the use of water having actually been applied to any beneficial use” prior to the enactment of the KWAA. Those claiming a vested right were required to file a claim with the chief engineer of DWR prior to July 1,1980. See K.S.A. 82a-704a(d). In the present case, FRE has a vested water right that existed prior to 1945 and was properly recorded with the chief engineer in 1950.
K.S.A. 2014 Supp. 82a-701(f) defines an “appropriation right” as “a right, acquired under the provisions of [the KWAA], to divert from a definite water supply a specific quantity of water at a specific rate of diversion, provided such water is available in excess of the requirements of all vested rights that relate to such supply . . . (Emphasis added.) Accordingly, although an appropriation right has preference over all subsequent appropriation rights, it does not have priority over senior, vested, or prior appropriation rights to divert water from the source. Except for certain domestic uses, an appropriation right must be acquired from the chief engineer of DWR under K.S.A. 82a-705. The holders of an appropriation right do not own the groundwater—they simply have a right to use it subject to the beneficial use principle. K.S.A. 2014 Supp. 82a-707(a). In the present case, AWI is the holder of two appropriation rights that were properly recorded with the chief engineer of DWR in 1964 and 1976.
A water right—whether a vested right or an appropriation right—in which a person is lawfully authorized to divert and use water is deemed to be a real property right. As such, the right “passes as an appurtenance with a conveyance of the land [it is on or in connection with which the water is used] by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.” K.S.A. 2014 Supp. 82a-701(g). Here, it is undisputed that FRE obtained its senior vested water right from Garetson Brothers, and AWI obtained its appropriation water rights from the Unruhs.
Kansas law expressly provides that “the first in time is first in right.” K.S.A. 2014 Supp. 82a-707(c). Under the KWAA, the chief engineer of DWR assigns each appropriation right a number—the lower the number, the higher the priority. Likewise, as noted above, appropriation rights are subject to vested rights. As such, “the date of priority . . . and not the purpose of use, determines the right to divert and use water at any time when the supply is not sufficient to satisfy all water rights.” K.S.A. 2014 Supp. 82a-707(b). In other words, a vested right—such as that held by FRE— has priority over an appropriation right—such as those held by AWI—and as between appropriation rights, an earlier date has priority over a later date. Accordingly, in the present case, FRE holds a senior vested water right and AWI holds two junior appropriation water rights.
K.S.A. 82a-706 grants the chief engineer of DWR the authority to enforce and administer the laws of this state pertaining to the beneficial use of water, and tire chief engineer shall control, conserve, regulate, allot, and aid in the distribution of water resources in accordance with the rights of priority of appropriation. Furthermore, K.S.A 82a-706b authorizes the chief engineer of DWR to determine if there has been an unlawful diversion of water. The procedure for filing an administrative action for a determination by the chief engineer is set forth in K.A.R. 5-4-1. In the alternative, K.S.A. 82a-716 and K.S.A. 82a-717a afford a senior water right holder the right to seek injunctive relief—and in some cases monetary damages—in order to protect his or her prior right against a junior water right holder. See Williams v. City of Wichita, 190 Kan. 317, 335, 374 P.2d 578 (1962); see also Duncan, High Noon on the Ogallala Aquifer: Agriculture Does Not Live by Faimland Preservation Alone, 27 Washburn L.J. 16, 47 (1987) (“The Act gives an appropriator seeking to protect an allotment the right to enjoin a junior appropriator’s interference.” [Citing K.S.A. 82a-716.]); Peck and Owen, Loss of Kansas Water Rights for Non-Use, 43 U. Kan. L. Rev. 801, 801 (1995) (“Water rights under the ‘first in time, first in right’ system are subject to temporary curtailment by a more senior right.” [Citing K.S.A. 82a-717a.]).
If the State is not a party to the action, tire district court has the authority under K.S.A. 82a-725 to order DWR or the chief engineer to serve “as referee, for investigation of and report upon any or all of the physical facts involved and the division or its chief engineer shall thereupon malee such an investigation and report as ordered by the court.” After the rights for the use of water have been judicially determined, the court must provide a certified copy of the decree to the chief engineer. K.S.A. 82a-720. In turn, DWR is required to “aid in the distribution of such water according to [the court’s] decree . . . .” K.S.A. 82a-719.
Admission of DWR’s Final Report into Evidence
On appeal, AWI contends that the district court erred in admitting DWR’s final report into evidence without requiring a proper foundation. Specifically, AWI argues that the author or authors of the report should have been required to testify before it was admitted into evidence. In response, FRE contends that K.S.A. 82a-725 authorizes the admission of the final report into evidence without the need for foundation testimony.
As a general rule, all relevant evidence is admissible under K.S.A. 60-407(f); see K.S.A. 60-401(b). Here, it is undisputed that DWR’s final report is relevant and material. Rather, the only question presented on appeal relates to whether there was sufficient foundation for the admission of the final report into evidence.
We apply evidentiary rules either as a matter of law or in the exercise of the district court’s discretion, depending on the nature of the question. See City of Wichita v. Denton, 296 Kan. 244, 257, 294 P.3d 207 (2013). “[A] district court usually has considerable discretion in evidentiary rulings regarding foundation evidence, and its decisions in this regard are reviewed for an abuse of discretion.” State v. Davis, 41 Kan. App. 2d 1034, 1037, 207 P.3d 281 (2009) (citing City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 [1993]). 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. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013).
To the extent that the issue presented involves the adequacy of the legal basis for the district court’s decision to admit the final report into evidence—specifically an interpretation of K.S.A. 82a-725—our review is de novo. See State v. Woolverton, 284 Kan. 59, 64, 159 P.3d 985 (2007). When interpreting a statute, we must first attempt to discern the legislature’s intent through the language enacted, giving common words their ordinary meanings. When statutory language is plain and unambiguous, we may not speculate as to legislative intent, and we are not to read into the statute words not readily found there. It is only when the language is unclear or ambiguous that we employ the canons of statutory construction, consult legislative history, or otherwise consider background information to ascertain the statute’s meaning. In re A.M.M.-H., 300 Kan. 532, 535, 331 P.3d 775 (2014).
K.S.A. 82a-725 grants the district court the authority to “order a reference to [DWR] or its chief engineer, as referee, for investigation of and report upon all of the physical facts involved and [DWR] or its chief engineer shall thereupon make such an investigation and report as ordered hy the court.” (Emphasis added.) Moreover, the statute requires that the report “shall set forth such findings of fact as may be required by the court’s order of reference and may contain such opinions upon the facts as it deems proper in view of the issues submitted.” (Emphasis added.) Prior to filing the report with the district court, the statute requires that DWR provide a copy to the parties and grants them 30 days to file objections.
Furthermore, K.S.A. 82a-725 goes on to state:
“After the division, or its chief engineer, has considered the objections, it shall file its report, as referee, with the clerk of the court and give notice by registered or certified mail of the filing of its report to die parties or their attorneys. The court shall review the report upon exceptions thereto filed with the clerk of the court widiin diirty (30) days after date of mailing registered notice of die filing of die report. Except in its discretion or for good cause shown, the court shall not consider any exception to the report unless it appears that the excepting party presented the matter of the exception to the division or its chief engineer in the form of an objection. The report shall be evidence of the physical facts found therein, but the court shall hear such evidence as may be offered by any party to rebut the report or the evidence. If suit is brought in a federal court for determination of rights to water within, or partially widiin, the state, the division or its chief engineer may accept a reference of such suit as master or referee for the court.” (Emphasis added.)
Based on our review of the record, it appears that the district court and the DWR appropriately followed the procedure set forth in K.S.A. 82a-725. Moreover, AWI does not challenge the procedure in its brief. Rather, AWI argues that the district court erred by failing to require the author of DWR’s final report to testify prior to it being admitted at the temporary injunction hearing.
The unambiguous language of K.S.A. 82a-725, however, expressly requires that “[t]he court shall review the report”—as well as any objections properly filed by the parties—and that “[t]he report shall be evidence of the physical facts . . . .” (Emphasis added.) On its face, the statute does not require the chief engineer or any other witness to testify prior to the district court reviewing the report or considering it as evidence, so we will not read such language into the statute. Thus, we find that it was appropriate for the district court to consider DWR’s final report as evidence at the temporaiy injunction hearing without first requiring the report’s author to testify so long as it allowed the parties to present evidence in an attempt to rebut the report—which it did.
In addition, we find that allowing the district court to consider DWR’s final report without first requiring testimony from the chief engineer or other witnesses to testify as to foundation is consistent with the KWAA when viewed in its entirety. In adopting the KWAA, the legislature (1) set forth specific administrative and court procedures that may be utilized to resolve disputes between the holders of water rights; (2) recognized the unique expertise of DWR or its chief engineer in the field of water appropriation; (3) required DWR to consider the parties’ objections before filing its final report with the court; (4) ensured that a neutral party—DWR or its chief engineer—is available to assist the court in investigating the facts and to render opinions on such facts in cases involving disputes over water rights; and (5) protected the parties by requiring the district court to review the report upon any timely filed exceptions and by allowing the parties to present additional evidence in an attempt to rebut the report.
Even if we look to Chapter 60 for guidance in resolving this issue as AWI suggests that we do, the result would be the same. K.S.A. 60-402 recognizes that there are other statutory provisions that may control in specific situations rather than the standard rules of evidence. See 4 Gard, Casad, and Mulligan, Kansas Law and Practice, Kan. C. Civ. Proc. Annot. § 60-402, Commentary, p. 453 (5th ed. 2012) (“When specific questions arise resort should be had to the statutes to discover the existence of such applicable provisions.”). Here, we find guidance from K.S.A. 2014 Supp. 60-253, which addresses references to special masters.
It is undisputed that DWR or its chief engineer was appointed by the district court in this case to serve as a “referee” pursuant to K.S.A. 82-725. Under Chapter 60, the term referee is used interchangeably with the term master. See K.S.A. 2014 Supp. 60-253(a)(2) (“ "master includes a referee, an auditor, a commissioner and an examiner”). Hence, as explained in 4 Gard, Casad, and Mulligan, Kansas Law and Practice, Kan. C. Civ. Proc. Annot. § 60-253, Commentary, p. 312:
“The master now takes the place of the referee, the commissioner, the auditor and the examiner, except where those designations are retained by the provisions of other statutes. This rule should malee the procedure on the state level as uniform as it is possible to make it in view of the many separate procedures for trial examiners and the like in specialty fields.”
Moreover, K.S.A. 2014 Supp. 60-253(e)(2) provides that in non-jury actions “the court must accept the master’s findings of fact unless clearly erroneous.” Similar to K.S.A. 82a-725, there is no requirement that the master testify before the referring court reviews the master’s report. Rather, after considering any timely objections asserted by the parties, the district court may “adopt or modify the report, reject the report in whole or in part, receive further evidence or recommit the report with instructions.” K.S.A. 2014 Supp. 60-253(e)(2).
Consequently, we conclude that the district court did not commit an error of law in admitting or considering DWR’s final report at the temporary injunction hearing without first requiring the chief engineer or another witness to establish a foundation. Furthermore, we do not find the district court’s decision to be arbitrary, fanciful, or unreasonable.
Weight Given to AWFs Evidence
AWI also contends that the district court erred in ignoring undisputed or uncontroverted evidence presented at the temporary injunction hearing. Specifically, AWI argues that the district court disregarded testimony from its expert, Dr. Rainwater, that the methodology used in DWR’s final repoxt was “not . . . based on scientifically acceptable procedures.” In addition, AWI argues that the district court disregarded Dr. Rainwaters testimony that “[p]art of the reason [FRE’s] well performs poorly is because of tire amount of screen that was used in construction of the well.” The screen is the subterraneous portion of the well that actually allows groundwater to enter the well during pumping. A screen with a smaller intake area will pull in less water than a screen with a larger intake area, resulting in a lower pump rate. In response, FRE contends that the district court did not ignore Dr. Rainwater’s testimony but simply did not find it to be persuasive.
Contrary to AWI’s assertion, Dr. Rainwater’s testimony was not undisputed at the temporary injunction hearing. In fact, Dr. Rainwater’s testimony was presented in an attempt to rebut the findings and opinions set forth in DWR’s final report. Moreover, although Dr. Rainwater took issue with the formula used by DWR in one of its calculations, tire formula was not the sole factor considered by DWR before it concluded that FRE’s senior water right is being substantially impaired by the operation of AWI’s junior water rights. Further, Dr. Rainwater did not dispute other portions of DWR’s report regarding the impairment of FRE’s senior water right. Similarly, Dr. Rainwater’s opinion that FRE’s well production was limited due to its construction is disputed by DWR’s final report that states the impairment is principally caused by well-to-well interference.
The district court did not ignore undisputed evidence. Instead, the district court weighed the conflicting evidence—which included DWR’s final report—and made factual findings. Based on our review of the record, we conclude that these findings are supported by substantial evidence. Moreover, it is not our role on appeal to reweigh the evidence, assess tire credibility of the witnesses, or resolve conflicting evidence. See State v. Reed, 300 Kan. 494, 499, 332 P.3d 172 (2014).
Interpretation of K.S.A. 82a-716 and K.S.A. 82a-717a
Additionally, AWI contends that the district court erred in its interpretation of the term “impair” as it is used in K.S.A. 82a-717a, which states in part:
“[A]ny common-law claimant with a vested right, or other person with ... a prior appropriation right . . . may restrain or enjoin . . . any diversion or proposed diversion that impairs or would impair such right in the event that any such diversion ... is made or threatened by any . . . other person who does not have ... a prior appropriation right. . . .” (Emphasis added.)
Specifically, AWI would have us interpret K.S.A. 82a-717a to mean that some impairment of a senior or vested water right by diversion is acceptable, so long as it is not “beyond a reasonable economic limit”—a phrase found in K.S.A. 2014 Supp. 82a-711(c). In response, FRE contends that it was appropriate for the district court to use the definition of the word “impair” found in Black’s Law Dictionary. Also, FRE asserts that K.S.A. 2014 Supp. 82a-711 does not apply to the circumstances presented in this case.
We must first attempt to discern the legislature’s intent through the language used in the statutes by giving common words their ordinary meanings. As a general rule, we employ the canons of statutory construction only when the language is ambiguous. When statutory language is plain and unambiguous, we are not to speculate as to legislative intent. Likewise, we are not to read into the statutes words not readily found there. In re 300 Kan. at 535.
Both K.S.A. 82a-716 and K.S.A. 82a-717a afford prior senior water right holders die right to seek injunctive relief against a junior water right holder who is diverting water from die same source. See Williams, 190 Kan. at 335. But AWI does not even mention K.S.A. 82a-716 in its brief. This is significant for several reasons. First, the district court relied upon K.S.A. 82a-716—not K.S.A. 82a-717a—in granting the temporary injunction in this case. Second, the word “impair” is not used in K.S.A. 82a-716. Third, like K.S.A. 82a-717a, the phrase “beyond a reasonable economic limit” is not found in K.S.A. 82a-716.
In its decision granting the temporaiy injunction, the district court expressly found that K.S.A. 82a-716 “clearly provides authority for [FRE] to request a temporary injunction to protect [its] first in time water right.” AWI’s failure to brief the court on this statute or otherwise argue that the district court inappropriately applied the statute here arguably results in AWI’s abandonment of this issue, meaning it is not properly before us. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). Nonetheless, K.S.A. 82a-716 provides—in part—that a senior water right holder “shall have the right to injunctive relief to protect his or her prior right of beneficial use as against use by an appropriator with a later priority of right.” We do not find this language to be either unclear or ambiguous.
Even if the district court had relied upon K.S.A. 82a-717a in granting the temporaiy injunction in this case, we do not find the word “impair” to be unclear or ambiguous. The common definition of the word “impair” is “to cause to diminish, as in strength, value, or quality.” The American Heritage Dictionary 878 (4th ed. 2006). This definition is similar to the definition of impair used by the district court, which looked to Black’s Law Dictionary 752 (6th ed. 1990) to define “impair” to mean “to weaken, to make worse, to lessen in power, diminish, or relax or otherwise affect in an injurious manner.” See Humana Inc. v. Forsyth, 525 U.S. 299, 309-10, 119 S. Ct. 710, 142 L. Ed. 2d 753 (1999). Thus, using the ordinary definition of impair, we conclude that the legislature intended that the holder of a senior water right may seek injunctive relief to protect against a diversion of water by a holder of a junior water right when that diversion diminishes, weakens, or injures the prior right.
Because K.S.A. 82a-717a is clear and unambiguous, we decline AWTs invitation to add the “beyond a reasonable economic limit” language used in K.S.A. 2014 Supp. 82a-711(c). Had the legislature desired to give the word “impair” a special definition, it could have done so either by adding the definition to the text of K.S.A. 82a-717a or including it in the definition section of the KWAA located in K.S.A. 2014 Supp. 82-701. However, it chose not to do so. Thus, we decline AWTs invitation to read additional language into the statute.
Granting of Temporary Injunction
We now turn to the ultimate issue presented: whether the district court erred in issuing a temporaiy injunction in this case. The purpose of a temporaiy injunction is not to determine any disputed right but to prevent injury to a claimed right pending a final determination of the controversy on its merits. See Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 492, 173 P.3d 642 (2007). We review the grant or denial of injunctive relief under an abuse of discretion standard. See Downtown Bar and Grill v. State, 294 Kan. 188, 191, 273 P.3d 709 (2012). As indicated above, judicial action constitutes an abuse of discretion if tire action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Snider, 297 Kan. at 169. In particular, we review the district court’s findings of fact to determine if they are supported by substantial evidence and are sufficient to support its conclusions of law. See Broten v. ConocoPhillips Pipeline Co., 47 Kan. App. 2d 26, 35-36, 271 P.3d 1269 (2012).
As the party challenging the order granting the temporary injunction, AWI bears the burden of proving the trial court abused its discretion. See Steffes v. City of Lawrence, 284 Kan. 380, 393, 160 P.3d 843 (2007). To obtain injunctive relief, including temporary injunctive relief, the requesting party must show: (1) a substantial likelihood of success on the merits; (2) a reasonable probability of irreparable future injury to the movant; (3) an action at law will not provide an adequate remedy; (4) the threatened injury to tire movant outweighs whatever damage the proposed injunction may cause the opposing party; and (5) the injunction, if issued, would not be adverse to the public interest. Downtown Bar and Grill, 294 Kan. at 191. It is important to recognize that AWI has not asserted that the district court erred in its findings on any of these elements.
AWI contends that the district court erred by finding that a temporary injunction would preserve the status quo. In particular, AWI argues that at tire time the injunction was granted, the status quo allowed it to use its junior water rights for agricultural irrigation pursuant to an appropriation right granted by DWR. FRE counters that “if a first in time water right is impaired, to maintain the status quo, one would protect the first in time right.” AWI also asserts that the district court erred when it issued the temporary injunction because the injunction would not cure the impairment to FRE’s senior water right. In response, FRE contends that K.S.A. 82a-717a gives it the right to enjoin the holder of a junior water right from impairing its senior water right regardless of whether it would completely cure the impairment.
In Steffes, 284 Kan. at 394, the Kansas Supreme Court found as follows:
“ ‘The purpose of a temporary or preliminary injunction is not to determine any controverted right, but to prevent injury to a claimed right pending a final determination of the controversy on its merits. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. A temporary injunction merely preserves the status quo until a final determination of a controversy can he made.’ [Citation omitted.]”
We note that preservation of the status quo is not one of the five required showings before the district court can issue a temporaiy injunction. Further, the status quo is defined under Kansas caselaw as “the last actual, peaceable, noncontested position of the parties which preceded the pending controversy.” U.S.D. No. 503 v. McKinney, 236 Kan. 224, 227, 689 P.2d 860 (1984). Here, the district court found that the status quo could best be served by preservation of FRE’s first in time senior water right over AWI’s junior water rights.
A review of the record reveals that the district court’s finding regarding the status quo is supported by substantial evidence. In particular, the record demonstrates that the last time the parties were in a peaceable, noncontested position was prior to 2005 when water was not being diverted from the senior water right holder by the junior water right holders. Not only was this conclusion sup-ing, it is also consistent with the KWAA’s policy of “the first in time is first in right” under K.S.A. 2014 Supp. 82a-707(c).
We also find AWI’s argument that the temporary injunction will not cure the impairment to FRE’s senior water right as beyond the scope of a temporary injunction. As noted above, a temporary injunction is not intended to be a final remedy. In fact, a temporary injunction would not be appropriate if it completely resolved the object of tire lawsuit prior to trial. The temporary injunction issued by the district court is aimed at preventing FRE’s senior water right from being impaired or injured further pending the final determination of this case on the merits.
Conclusion
In conclusion, we find temporary injunctive relief to be an appropriate remedy under the circumstances presented. We further conclude that the district court did not abuse its discretion by ordering AWI and its tenant to stop pumping water from AWI’s two junior wells during the pendency of this action. We do not, of course, intend for this opinion to be a final determination on the merits, and we trust that all of the issues will be fully resolved by the district court.
Affirmed. | [
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On February 27, 2015, this court issued its opinion in the instant case. In the opinion, the court imposed a 3-year suspension, stayed the imposition of that discipline, and placed the respondent, James E. Rumsey, on probation for a 3-year period. This court stated:
“Detailing a probation plan in this opinion is hampered by the lack of compliance with Rule 211(g), however. We, therefore, order respondent to submit apian of probation to the Disciplinary Administrator within 14 days of the filing of this decision. The plan must include, at a minimum, mental health therapy, some level of practice supervision, and a requirement to immediately self report any violation of the KRPC. If the parties cannot agree on a probation plan within 30 days of the filing of this decision, both parties must submit a proposal to the court. If the parties agree, they may jointly submit a proposed order of probation or simply indicate their agreement with the other party’s proposal.”
On March 13, 2015, the parties submitted a joint supervised probation plan. The court has considered and adopts the supervised probation plan. Therefore, the court incorporates the supervised probation plan into this order by reference.
It Is Therefore Ordered that James E. Rumsey be placed on probation for a 3-year period, subject to the terms and conditions detailed in the supervised probation plan.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to the respondent.
Dated this 31st day of March, 2015. | [
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The opinion of the court was delivered by
Luckert, J.:
Thirteen-year-old Miguel Andrade died from gunshot wounds suffered as he opened the door of his family’s home. The State charged four men with crimes related to Miguel’s death. One of those men, Eli A. Betancourt, brings this appeal after a jury convicted him of premeditated first-degree murder and criminal discharge of a firearm at an occupied building. He raises five issues related to (1) die admission of his statements to law enforcement officers, (2) the admission of certain hearsay statements, (3) the trial court’s failure to give an instruction on eyewitness testimony, (4) sufficiency of the evidence, and (5) allegations of ineffective assistance of trial counsel. In response, the State initially raised a jurisdictional question regarding the timing of Betancourt’s notice of appeal but subsequently withdrew its argument; in addition, the State argued and maintains that the trial court committed no errors. For the reasons stated in this opinion, we conclude Betan-court’s arguments lack merit, and, therefore, we affirm his convictions and sentences.
Facts and Procedural Background
Besides Betancourt, the State charged Betancourt’s half-brother, Alejandro Betancourt, Jr.; Edward Laurel; and Gregory Patton with crimes related to Miguel’s death. Patton entered into a plea agreement with the State under which Patton agreed to testily in the prosecution of the other men in exchange for reduced charges. Alejandro’s and Laurel’s cases went to trial, and jurors convicted them as charged. Both men appealed, and their convictions were affirmed. See State v. Laurel, 299 Kan. 668, 325 P.3d 1154 (2014); State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014). Although the general facts of the crimes are discussed in those opinions, we will discuss the evidence at Betancourt’s trial because he raises a sufficiency and other fact-based arguments. Betancourt’s juiy learned the details of the crimes through the testimony of a detective who interrogated Betancourt shortly after tiie shooting, several eyewitnesses, forensic experts, Patton, and Betancourt himself.
Betancourt’s Statements to Detectives
According to Betancourt’s statements to law enforcement officers, the night before the shooting he, Alejandro, Laurel, Patton and many other individuals attended a birthday party. During the party, several individuals challenged Betancourt to avenge a previous “attack” on Daniel Betancourt, Eli’s half brother and Alejandro’s brother. As these discussions progressed, Laurel indicated he knew where one of the individuals associated with the attack had been staying. In the early morning hours, Betancourt left the party with Alejandro and Patton. Betancourt drove the other two men to another location where they picked up Laurel, who directed Betancourt to a house occupied by Miguel’s family. The group merely drove by Miguel’s house and then went to another location where Laurel retrieved two guns. The group returned to Miguel’s house, this time with Alejandro in the driver’s seat.
En route to Miguel’s house, Laurel gave Betancourt one of the guns, which Betancourt described as a “Beretta.” Betancourt told detectives that Laurel kept a “real small” gun with a “long” barrel. While they drove, Betancourt texted a female friend, saying, “I’m gonna go do something,” and “If I don’t see you for a while ... I don’t want you to think that I’m just gonna disappear.”
When tire men got to Miguel’s house, Betancourt and Laurel got out of the car and approached the front door. Betancourt held open the screen door with his leg, and Laurel banged on the main door with his gun. When the knob began to turn and the door began to open, Laurel said, “[G]et him.” Laurel started shooting, and Betancourt followed suit. According to Betancourt, he aimed his shots for the middle of the door. After the shooting, they ran up the street, and the others picked them up. Betancourt gave his gun back to Laurel.
Alejandro drove until they dropped off Laurel, who took both guns with him. Betancourt took over the driving and within minutes noticed a police car following him. He pulled over, and the three friends were taken into custody. Later that day, Laurel was located and taken into custody as well. The guns were never recovered.
Betancourt’s Testimony
At trial, Betancourt relayed a somewhat different version. He told the jury he went to Miguel’s house with Laurel and the others only because he wanted to get an address to give to his father, who had been conducting his own investigation of the assault on Daniel. When the men drove by the house the first time, it was too dark to see the house numbers, so they left. After drinking until it got brighter outside, they returned to “look in the window for some bald-headed guy that was in the fight.” Betancourt testified that, as far as he knew, they did not have guns on this second driveby. They still could not see the address, so they kept going “and started drinking some more.” Betancourt told the jury that after a night of partying and drinking he was intoxicated to a level of 8 on a scale of 10.
As the sun began to rise, the group made a third trip to Miguel’s house. This time, Laurel brought guns. Betancourt testified that he agreed to “just get it“—the address—’’and go.” Someone handed him a gun—he thought it was a Beretta—“just in case.” He denied that there was a plan to kill anyone, asserting that he only took a gun for “precaution reasons.”
Betancourt put the gun under his shirt and walked up to the house with Laurel, while Alejandro drove a short distance away. Laurel told Betancourt, “[Ljet’s just walk up there, . . . see if we can find some numbers somewhere and that was it.” When he and Laurel stepped up to the front door, Betancourt pulled on the screen door as he tried to balance himself while looking into the front window located to the left of the door. He could not see anything because of the window coverings. Laurel then suggested that they knock on the door, and Betancourt said “no,” “I’m done,” and “I’m not stickin’ around.” Betancourt started walking away as Laurel knocked on tire door. Halfway back to tire driveway, Betan-court “heard a gunshot” and “froze.” At first Betancourt thought Laurel was shooting at him because Laurel was angry that he had walked away. Then, he heard more shots, so “I just put my arm back and was just . . . shooting the gun.” He told the jury he did not know what direction he was shooting, but he denied shooting at tire center of the front door. He testified, “I just panicked, I got scared, freaked out.”
Other Evidence
The State presented evidence from other witnesses who incriminated Betancourt. Patton testified that Laurel told the others that he “wanted to get back at these guys” by shooting somebody. When they got to the house, Patton knew a shooting was about to take place and told Betancourt three times that “we shouldn’t do this.” But Betancourt insisted on going forward. After the shooting, Laurel told diem, “I got him.” Patton noticed that both Betancourt and Laurel had a gun.
Neighbors who observed the scene were able to describe what happened and to give descriptions of the two gunmen who resembled Betancourt and Laurel. They saw two Hispanic men walk up to the house; one was wearing a white shirt—like the one Betan-court was wearing when arrested—and the other a red shirt. One of the men either knocked on die door or rang the doorbell while the other looked into a window. The two men started shooting at the door when it appeared that someone inside the house was approaching the door. One neighbor saw a man near the driveway, and it looked like he was firing a weapon. Another neighbor reported seeing one gunman in a red shirt fire first, followed by the other gunman in the white shirt; the one in the white shirt was “running backwards, firing,” and moving towards the driveway. Some neighbors identified Betancourt as one of the shooters.
A crime scene investigator testified that at least 10 shots from a .22 caliber gun and a .9 mm gun were fired into the main door. Other shots flanked the door. Eyewitness testimony and other corroborating evidence suggested that Betancourt fired die .22 caliber bullets and Laurel fired the .9 mm bullets. The location of casings suggested the .9 mm gun was fired closer to the house than the .22 caliber casings (linked to Betancourt). Upon examination of the body, the coroner was able to recover a .9 mm bullet, but the coroner could not attribute the death to any particular bullet. Miguel suffered injuries to his abdomen, legs, and hand.
The State filed an information charging Betancourt widi one count of premeditated first-degree murder, or, in the alternative, one count of felony first-degree murder, and one count of criminal discharge of a firearm at an occupied building. A juiy found him guilty of premeditated first-degree murder and criminal discharge of a firearm. The court sentenced him to a hard 25 life sentence for murder and a consecutive 13-month sentence for criminal discharge of a firearm.
No Error In Admission of Statements
Betancourt argues the trial court erred in admitting into evidence his statements to the detectives. He suggests that his age, his intellect, the influence of alcohol, sleep deprivation, and the “long isolation and detention” in the interview room rendered his confession involuntaiy.
Additional Facts
Betancourt first raised this issue before trial by filing a motion to suppress, and the State filed a motion requesting admission of the statements and an evidentiary hearing on the matter. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); see also State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481 (2012) (at a Jackson v. Denno hearing, the issue before the court is whether defendant’s statement or confession was voluntary; truthfulness of a statement is not at issue). The trial court held a hearing at which a detective testified about what happened before and during the interrogation.
The detective testified that Betancourt was taken to an interrogation room and held there for 7 to 8 hours while detectives investigated the crime. During this time, the detectives handcuffed one of Betancourt’s arms to the table. Officers repeatedly checked on him and offered water, food, and a restroom. Meanwhile, law enforcement officers visited tire scene of the crime and interviewed other witnesses. Two detectives then conducted a recorded interview of Betancourt. The interrogation lasted just over 3½ hours. During that time, the detectives often left the room, leaving Be-tancourt alone. Actual questioning lasted approximately 2½ hours. The detective calculated that a total of 14 or 15 hours passed between Betancourt’s arrival at the police station and his transport to the jail.
The testifying detective told tire trial court that when he asked Betancourt for personal information, “all of his answers [were] appropriate,” and Betancourt “sat upright, we made eye contact, he spoke immediately in response” to questions, and “his dialogue appeared to be very much . . . normal for any other person.” After obtaining Betancourt’s personal histoiy, the detective read an ad vice of rights form while Betancourt read along. After reading each of the Miranda rights, the detective asked Betancourt if he understood; Betancourt acknowledged that he did and initialed each line. Betancourt then signed the form and indicated that he wanted to speak with detectives.
General Principles/Standards of Revieio
When Betancourt challenged his inculpatory statements as involuntarily given, the State was required to prove voluntariness by a preponderance of the evidence. See State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). The trial court was then obligated to assess voluntariness under the totality of the circumstances, considering several nonexclusive factors: (1) Betancourt’s mental condition; (2) the manner and duration of the interrogation; (3) Be-tancourt’s ability to communicate on request with the outside world; (4) Betancourt’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) Betancourt’s fluency with the English language. See State v. Gibson, 299 Kan. 207, 214, 322 P.3d 389 (2014). Any one factor or a combination of factors “may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act.’ [Citations omitted.]” State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009).
In this case, the trial court explicitly considered these factors, made findings on the record, and concluded that Betancourt’s statement was voluntaiy.
As we consider Betancourt’s challenge to these findings, we apply a bifurcated standard of review. First, without reweighing the evidence, we examine the trial court’s findings of fact to determine whether they are supported by substantial competent evidence. Next, we apply a de novo standard of review to the ultimate legal conclusion regarding the suppression of evidence. We cannot reweigh evidence, assess witness credibility, or resolve conflicting evidence. Gibson, 299 Kan. at 215-16.
Betancourt’s Arguments
In asking this court to consider the totality of the circumstances, Betancourt focuses on three factors: his mental condition; his age and intellect; and the duration and manner of the detention and interrogation. He does not cite any caselaw to support his arguments.
Mental Condition
First, Betancourt claims that his statements were rendered involuntary because he was sleep deprived and had “cocaine and alcohol [running] through his veins[,] dulling his brain and impairing his judgment.” Several points weaken Betancourt’s argument. First, no evidence supports Betancourt’s assertion that there was cocaine in his system. The record citation he provides is to a post-trial hearing, and that evidence only establishes that others were using cocaine at die birthday party. Second, although Betancourt points to evidence of excessive drinking, the evidence is conflicting. While Betancourt told the jury he drank heavily throughout the evening and was veiy intoxicated, he had told interrogating officers he had only 2 or 3 beers approximately 12 hours before the interview. Third, merely having alcohol or drugs running through his veins did not make his statement involuntary; rather, there must be evidence the alcohol and drug use impaired Betancourt’s ability to give a knowing and voluntary confession. See State v. Gilliland, 294 Kan. 519, 529, 276 P.3d 165 (2012), cert. denied 133 S. Ct. 1274 (2013); State v. Norris, 244 Kan. 326, 334-35, 768 P.2d 296 (1989). Similarly, lack of sleep does not per se render the statements involuntary. See State v. Gonzalez, 282 Kan. 73, 104, 145 P.3d 18 (2006). Finally, Betancourt does not identify any point in the interrogation where the effects of alcohol and drug use or sleep deprivation were manifested. For example, he does not cite to a point where he seemed confused, unable to understand, or unable to remember what had occurred. This court has repeatedly rejected appellate arguments suffering from similar weaknesses. One such case is State v. Holmes, 278 Kan. 603, 613, 102 P.3d 406 (2004).
In Holmes, the defendant argued that drug use and sleep deprivation, among other factors, impaired his ability to give a knowing and voluntary confession. The Holmes court noted that “the detectives testified that Holmes appeared coherent, answered questions rationally, and recalled events leading up to the shooting. In addition, he was cooperative with the detectives and showed no signs of being under the influence of drugs except for appearing tired.” 278 Kan. at 614. Thus, substantial evidence supported the trial court’s finding that Holmes’ confession was not involuntary based on drug use. 278 Kan. at 614. With regard to alleged lack of sleep, this court noted: “Without evidence that Holmes asked to sleep or that he was not allowed to sleep, we cannot conclude that sleep deprivation rendered his statement involuntary.” 278 Kan. at 615.
Likewise, in this case, substantial competent evidence supports the trial court’s findings. Betancourt’s behavior and responses during the interview do not suggest that he had a difficult time staying awake during the interrogation or was affected by drugs or alcohol. The recording of the interview reveals Betancourt sleeping during portions of the 7- or 8-hour period that he was held in the interview room before the detectives arrived for questioning. When questioning began, Betancourt appeared tired, but he listened carefully, spoke clearly, and answered questions without hesitation. He did not request sleep, and he remained responsive and articulate.
Age and Intellect
As for Betancourt’s age and intellect, the trial court found that Betancourt “was given a Miranda warning, he went through the form with the officer, he understood what his rights were. Throughout the course of the interview [Betancourt] was responsive and the answers were within the context of the questions that were asked.” In arguing to reverse the trial court, Betancourt labels himself as a 20-year-old “high school drop out.” He offers no other evidence to suggest his age or intellect weighs toward a conclusion that his statements were involuntary.
The record shows that Betancourt was 19 years old at the time of the interview, approximately 1 month before his 20th birthday. Thus, Betancourt had achieved adult status. Further, he had one previous arrest, so he was not completely unfamiliar with the process. Also, although the record establishes that Betancourt had been “kicked out” of high school during the second semester of his senior year, it also establishes that he ultimately obtained his GED. There is nothing in the record to indicate low intelligence.
In sum, there is no evidence that Betancourt’s general mental condition, his age, or his intelligence interfered with his ability to understand his rights or to voluntarily and knowingly waive those rights, to understand the detectives’ questions, or to “understand the incriminating nature of his own statements,” which are the essential considerations. See Randolph, 297 Kan. at 331; State v. Ackward, 281 Kan. 2, 9, 12, 128 P.3d 382 (2006) (where defendant was 20 years old and failed to graduate from high school, finding “he was not of an especially tender age and the trial judge, who had the opportunity to observe defendant in person, perceived him as being mature”).
Duration and Manner
Betancourt’s strongest argument—one that raises considerable concern—arises from the detectives’ holding him for 14 or 15 hours, much of it handcuffed to a table. The case of State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007), is instructive.
Brown was 21 years old at the time of his police interrogation, appeared to be a person of reasonable intelligence, and had previous exposure to the justice system. He attacked the voluntariness of his statements made during a custodial interrogation, in part, because he was held in the interview room, handcuffed to a table, for nearly 12 hours and because the interview itself lasted just under 5 hours. The Brown court noted that in periods between questioning, when officers stopped to investigate various aspects of the case, Brown appeared to be napping. He was also given breaks to eat a meal and to use the restroom. 285 Kan. at 271.
The Brown court stated that the “length of Brown’s confinement to the interrogation room, while handcuffed to a table for long periods of time, causes the issue of voluntariness to be close.” 285 Kan. at 272. Although there were legitimate reasons for the delays, tlie Brown court emphasized that “the legitimacy of or justification for die delays does not erase the concern over whether the lengtii of time of confinement in the interview room while handcuffed to a table was so excessive as to be coercive.” 285 Kan. at 272-73. And officers’ legitimate reasons for detaining a suspect cannot be “a license for law enforcement to extend interviews to such an excessive lengtii that a suspect’s will is overborne.” 285 Kan. at 273. Nevertheless, the Brown court refused to draw a bright line regarding a specific time period where an interrogation becomes inherently coercive. 285 Kan. at 273; but see Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 64 S. Ct. 921, 88 L. Ed. 1192 (1944) (36-hour interrogation inherently coercive). The Brown court found that a differentiation between the detention time and the interrogation time is a factor to consider in reviewing the totality of the circumstances. Brown, 285 Kan. at 273 (citing State v. Agnello, 269 Wis. 2d 260, 273-74, 674 N.W.2d 594 [2003] [discussing issue of duration and collecting cases where time of detention ranged from 8 hours to 7 days]).
Ultimately, the Brown court stated that the 12 hours “stretch[ed] to the temporal boundaries of an uncoercive interrogation,” but the duration and manner of the interview were not coercive under the circumstances of the case, where breaks were taken, the defendant napped, and the defendant was permitted to leave the room for short periods. 285 Kan. at 274.
The duration of the detention in this case—14 to 15 hours— exceeds Browns 12 hours; clearly, if Brown stretched the temporal limits, so does this case. But this court has held other interrogations were voluntary even though they lasted similar or longer periods of time. See State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007) (statements voluntary where defendant was held for almost 13 hours and confessed to committing crime after about 8 hours); State v. William, 248 Kan. 389, 409-10, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (statements voluntary where defendant was interrogated for approximately 6 hours over a 19-hour period). In addition, similar to the situation in Brown, there were bréales taken, Betancourt slept, he was allowed to go to the restroom, and he was offered and given food and water. Betancourt does not claim that detectives threatened him or promised him anything. He cites nothing in the record to suggest the length of detention motivated him to unwillingly give inculpatory statements.
Under the circumstances, there is substantial competent evidence to support the trial court’s conclusion that the duration and manner of the interview did not render Betancourt’s statements involuntary.
Outside Contact
In Betancourt’s appellate brief, he complains he was in “isolation” and was kept “away from the comfort of friends[,] families[,] counselors or advisors” while he waited in the interview room for 8 hours. But past cases have examined “the accused’s ability to communicate on request with the outside world.” (Emphasis added.) Gibson, 299 Kan. at 214. Here, Betancourt fails to cite any support in the record for such a request. See State v. Stone, 291 Kan. 13, 22, 237 P.3d 1229 (2010) (defendant did not ask to communicate with anyone outside of the interrogation; thus, that factor “simply did not apply”).
Totality of the Circumstances
As discussed above, while the duration and manner of the interview are troubling, that circumstance alone does not compel us to conclude as a matter of law that Betancourt’s statements were involuntary. And no other factor weighs in his favor. Therefore, the totality of the factors and circumstances of the interrogation lead to the conclusion that Betancourt’s statements were the product of his free and independent will.
Right to Counsel
Primarily relying on State v. Lawson, 296 Kan. 1084, 1094, 297 P.3d 1164 (2013), Betancourt also argues his statements should have been suppressed because he was denied his right to counsel under the Fifth Amendment to the United States Constitution and K.S.A. 22-4503. But Betancourt does not cite to any point during the interrogation where he invoked his right to counsel, and he must have done so to be entitled to relief under this argument. Simply put, the right to counsel under the Fifth Amendment ap plies when the accused has expressed his or her wish for the particular sort of attorney assistance that is the subject of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966). State v. Appleby, 289 Kan. 1017, 1045-46, 221 P.3d 525 (2009). “ It requires, at a minimum, 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.’ ” 289 Kan. at 1046 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 [1991]). Likewise, “[a]fter [an accused] has invoked his or her statutory right to counsel [under K.S.A. 22-4503], a police-initiated interrogation of the [accused] is a stage of the criminal proceedings at which the [accused] is entitled to the assistance of his or her counsel.” Lawson, 296 Kan. 1084, Syl. ¶ 6.
Because Betancourt fails to establish that he requested the assistance of counsel during his interrogation, he fails to establish that he was denied his statutory or constitutional right to counsel during the interview.
No Error In Admission of Hearsay Statements
Next, Betancourt argues the trial court erred by admitting into evidence hearsay statements made by Laurel and Alejandro under the coconspirators statement exception found in K.S.A. 60-460(i)(2). Betancourt also argues that the admission of these statements violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.
Although Betancourt attempts to sweep many statements into his argument, he cites to only two places in the record where he preserved appellate review of this issue by making an objection when the statements were admitted at trial. See K.S.A. 60-404 (providing diat 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”); State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (appellant’s burden to designate a record affirmatively showing error); State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (evidentiary claims “must be preserved by way of a contem poraneous objection for those claims to be reviewed on appeal”). The first preserved statement consists of Patton’s testimony about a statement Laurel made before the shooting when Laurel said “he knows where these guys live.” The second preserved statement consists of Patton’s testimony about a statement Laurel made after the shooting when Laurel said, “I got him, I got him.”
Standard of Review
Generally, this court reviews a trial court’s determination regarding whether hearsay is admissible under a statutory exception, such as K.S.A. 60-460(i)(2), for an abuse of discretion. State v. Davis, 283 Kan. 569, 573, 158 P.3d 317 (2006); see State v. Summers, 293 Kan. 819, 827, 272 P.3d 1 (2012); Brown, 285 Kan. at 294. There are three ways in which a trial court can abuse its discretion: (1) when no reasonable person would take the view adopted by the trial court; (2) when a ruling is based on an error of law; or (3) when substantial competent evidence does not support a trial court’s findings of fact on which 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). Betancourt focuses on the second and third grounds.
In addition to determining if the trial court abused its discretion in applying K.S.A. 60-460(i)(2), we must consider Betancourt’s argument that the ruling violated his rights under the Confrontation Clause. This attack on the trial proceedings raises a question of law over which this court employs an unlimited standard of review. State v. Johnson, 297 Kan. 210, 224, 301 P.3d 287 (2013); State v. Breedlove, 295 Kan. 481, 489, 286 P.3d 1123 (2012).
Coconspirator Exception
The exception on which the trial court based the admission of the evidence, K.S.A. 60-460(i)(2), provides that hearsay evidence is inadmissible unless “the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
Betancourt does not dispute that there was evidence establishing a substantial factual basis for a conspiracy between him, Patton, and Laurel. Instead, he asserts K.S.A. 60-460(i)(2) does not apply because the statements were not made outside his presence and were not made while the conspiracy was ongoing.
To support his argument that the statements must have been made outside his presence, Betancourt cites State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985). This court in Bird approved a five-part test that must be met for statements to be admissible under K.S.A. 60-460(i)(2). One prong of the test required the statements to be made outside the party’s presence. But Betancourt fails to acknowledge that this court in State v. Sharp, 289 Kan. 72, 102, 210 P.3d 590 (2009), disapproved the outside-the presence-of-the-party requirement after noting it was not included in the clear statutory language of K.S.A. 60-460(i)(2). After Sharp, a four-part—rather than the previous five-part-—test for admission of evidence under K.S.A. 60-460(i)(2) applies, requiring: (1) the person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been made while the conspiracy was in progress; and (4) the statement must be relevant to the plan or its subject matter. 289 Kan. at 102 (also disapproving State v. Roberts, 223 Kan. 49, 574 P.2d 164 [1977]). Betancourt’s argument relying on a disapproved test fails.
Betancourt focuses on the third requirement in his next argument, asserting that the two statements made by Laurel were not made while the conspiracy was in progress. This requirement is explicitly stated in K.S.A. 60-460(i)(2), which requires that the statement be made “while the plan was in existence and before its complete execution or other termination.” The State presents a two-fold argument in response to Betancourt’s assertion that the conspiracy was not in progress when the statements were made.
First, the State argues that Betancourt did not make this argument before the trial court. While Betancourt’s arguments to due trial court are at best ambiguous as to this prong, the trial court did address and reject tire possibility that the statements occurred outside the temporal framework of the conspiracy. In doing so, the trial court concluded that “the conspiracy continued for a period of time after [the shooting], until Mr. Laurel was dropped off.” Given that the trial court apparently understood Betancourt’s objection to include a failure by the State to meet the requirement of an ongoing conspiracy, we will address the argument’s merits.
The State’s second argument addresses the merits. The State contends the trial court did not err in concluding the statements were made while the conspiracy was in progress. We agree. There is substantial competent evidence supporting the trial court’s ruling.
The first of Laurel’s statements introduced through Patton’s testimony—that is, of Laurel “saying he knows where these guys live”—occurred, among other times, while the men were driving to Miguel’s house. Betancourt’s own statements establish that there had already been discussions about seeking revenge against those involved in the fight with Daniel and that Betancourt had agreed to participate. Thus, admitted evidence established an agreement had been reached, and the men’s actions of driving to the house were in furtherance of that agreement.
The second statement—that is, of Laurel saying, “I got him, I got him”—was made just after the shooting, during the getaway phase when Betancourt, Alejandro, Patton, and Laurel were fleeing the crime scene with the guns that Laurel later disposed of in such a way they were never found. The trial court found that the conspiracy “continued . . . until Mr. Laurel was dropped off.” This finding follows the rationale that in Kansas, the K.S.A. 60-460(i)(2) exception “pertains to the furtherance of the common criminal design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment.” State v. Borserine, 184 Kan. 405, 411, 337 P.2d 697 (1959); see State v. Sharp, 289 Kan. 72, 105, 210 P.3d 590 (2009) (exception applied to conspirator’s statements made before victim’s shoes, socks, and glasses were burned to conceal the crime). Laurel’s statement that “I got him, I got him,” pertains to the furtherance of the common criminal design and its consummation. And the statement was made before Laurel’s attempt to conceal the conspiracy.
Thus, substantial competent evidence supported the trial court’s ruling that the factual requirements for the application of K.S.A. 60-460(i)(2) were satisfied. The trial court did not abuse its discretion in admitting Laurel’s statements under this exception. Because we reach this holding, we need not discuss the State’s other arguments regarding alternative grounds for the admission of the evidence.
Confrontation Clause
Betancourt also argues the admission of these statements violated his right to confrontation under (1) tire rule established in Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), where an accused’s right to confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial; and (2) Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because the statements were testimonial hearsay. Neither argument is supported by caselaw.
As to Betancourt’s first argument, caselaw clearly establishes that Bruton only applies to statements that are admitted in a. joint trial. See Bruton, 391 U.S. at 135-36 (expressing concern “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial”); United States v. Volpendesto, 746 F.3d 273, 290 (7th Cir. 2004) (citing Bruton for the rule that “[i]f a co-defendant makes an out-of-court confession that inculpates the defendant, and the co-defendant does not testify at their joint trial, the out-of-court statement cannot be introduced as evidence at all; the risk of prejudice to the non-confessing defendant is simply too great”). There was no joint trial in this case, and Bruton does not apply.
Betancourt’s second argument—that is, that Laurel’s statements are testimonial and therefore inadmissible under the holding in Crawford unless Betancourt could confront Laurel—ignores tire United States Supreme Court’s categorical and unqualified declaration in Crawford that “statements in furtherance of a conspiracy” are not testimonial. Crawford, 541 U.S. at 56; Sharp, 289 Kan. at 101 (recognizing Craioford ‘s statement that coconspirators’ statements are not testimonial); State v. Jackson, 280 Kan. 16, 35, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006) (same).
Thus, Laurel’s statements were admissible under K.S.A. 60-460(i)(2) and the admission of those statements did not violate Betancourt’s constitutional right to confront witnesses. Betan-court’s claim of error fails.
No Error In Failing to Give Eyewitness Instruction
Next, Betancourt argues the trial court committed clear error when it failed to sua sponte give PIK Crim. 3d 52.20, the pattern eyewitness identification instruction that lists various factors jurors should consider in weighing eyewitness reliability and accuracy. Betancourt’s argument fails because he does not establish that the instruction was legally and factually warranted. State v. Williams, 295 Kan. 506, Syl. ¶¶ 3, 4, 5, 286 P.3d 195 (2012) (discussing K.S.A. 22-3414[3] and setting out progression of analysis and the corresponding standards of review for deciding a jury instruction issue when party did not request instruction at trial).
More specifically, Betancourt fails to acknowledge or discuss this court’s explicit statements indicating that an eyewitness identification instruction need only be given where “eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification.” State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981); see State v. Gaines, 260 Kan. 752, 758, 926 P.2d 641 (1996) (same), overruled on other grounds by State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014); State v. Willis, 240 Kan. 580, 585, 731 P.2d 287 (1987) (same). In this case, the neighbors’ identification of Betancourt was not crucial to the State’s case because Betancourt admitted—to interrogating officers and the jury—that he was present at the scene and was one of the shooters. The issue in dispute at trial involved Betan-court’s intent or mental state, not his identity. Hence, the trial court committed no error by not providing a cautionary eyewitness identification instruction.
Sufficiency of Evidence of Premeditated Murder
Betancourt next contends that there was insufficient evidence to support his conviction for premeditated first-degree murder. He argues that the State failed to prove the elements of premeditation and intent to kill.
Standard of Review/Legal Considerations
An appellate court considering a criminal defendant’s challenge to the sufficiency of the evidence must consider all the evidence in a light most favorable to the prosecution. After doing so, the appellate court can uphold the conviction only if it 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 witness credibility determinations.” State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014) (citing State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 [2013]).
When applying this standard to the sufficiency of evidence regarding premeditation and intent, it is not necessary that there be direct evidence of these elements. 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 considering circumstantial evidence, Kansas caselaw identifies factors to be considered in determining whether the circumstantial evidence in a case gives rise to an inference of premeditation. These factors 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. [Citation omitted.]” Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). While each of these factors should be considered, the reasonableness of an inference of premeditation is not driven by tire number of factors present in a particular case. Indeed, 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) (evi dence 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).
Evidence Was Sufficient
A review of the record shows both direct and circumstantial evidence of premeditation and intent to kill. In his appellate brief, Betancourt ignores the five factors and the circumstantial and direct evidence against him. Instead, he relies heavily on his trial testimony, which supported his defense theory that there was no plan or intent to kill; rather, he took a gun for “precaution reasons” but panicked and fired his weapon recklessly. Betancourt argues the evidence showed that “[a]t most, [he] considered that there may be a shooting toward the house, but not with the intent to hit anyone other than the building itself.”
Although the jury heard this evidence supporting Betancourt’s defense theory, the jury also heard evidence incriminating Betan-court—evidence from which a rational factfinder could conclude that the killing was intentional and premeditated. Specifically, Patton testified to statements made in the car that evidenced a clear intent to shoot someone. Additionally, strong evidence of guilt came from Betancourt’s own statements to detectives.
As to the nature of the weapon, Betancourt admitted to firing a gun. Regarding provocation, he indicated die motive for doing so was to avenge a fight in which his half brodier Daniel was seriously injured; he cited no provocation on the day of the murder (or even the night before at the party). Rather, Betancourt and tire other men actively sought out Miguel’s residence; they were the aggressors. In fact, tiie jury learned that Daniel’s alleged attacker, who was the boyfriend of Miguel’s sister, had not stayed with Miguel’s family for several weeks before Miguel’s death because Miguel’s mother disapproved of her daughter’s relationship.
As for the third and fourth factors—Betancourt’s conduct before and after the killing, and threats and declarations made before and/ or during the occurrence—Betancourt admitted that he switched places with Alejandro, leaving Alejandro as the driver despite Ale jandro’s lack of a valid driver’s license, so Betancourt could approach Miguel’s house with Laurel. On the drive to Miguel’s house, Betancourt texted a female friend that he was “gonna go do something” and “I don’t want you to think I’m shady” if she did not see him “for a while.” Then, according to Betancourt, at Miguel’s house when the door knob started turning and Laurel said, “[G]et him,” Betancourt began shooting, firing approximately six times. An examination of the front door showed six bullet strikes above the door handle in the “middle” of the door, with another four either lower or higher on the door. The higher shots came from a .22 caliber weapon, as did two holes on either side of tire door. The evidence pointed to Betancourt as tire shooter of the .22 caliber gun. Patton testified drat when Betancourt and Laurel got back in the getaway car, Laurel said, “I got him, I got him.” Be-tancourt said nothing in response.
Finally, tire fifth factor—dealing lethal blows after tire deceased was felled and rendered helpless—also weighs toward a finding of premeditation. Certainly, there is no evidence that Betancourt knew Miguel had been injured. But expert testimony at trial showed that the victim was shot 10 times, which yielded 15 gunshot wounds. Some of the wounds were “graze wounds,” which showed the victim “was trying to avoid or run.”
Betancourt argues that the bullet strike pattern shows that he was firing “wildly and at random” and contends that his shots did not strike the fatal blow. But the evidence viewed in the light most favorable to the State provides evidence Betancourt shot in a pattern designed to hit someone standing on the other side of the door. And he did not just fire once, he fired multiple times. Furthermore, Betancourt fails to cite evidence that eliminates the possibility injuries resulting from the .22 caliber bullets caused or contributed to Miguel’s death. The coroner left open the possibility, opining that he could not attribute the death to any particular bullet because of the devastating injuries to Miguel’s abdomen, legs, and hand.
Even if Betancourt’s bullets were not fatal strikes, die jury was instructed on aiding and abetting and, therefore, was told that a person who “eitíier before or during its commission, intentionally aids anotlier 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 the crime.” See PIK Crim. 3d 54.05 (responsibility for crimes of another). Any lack of firing one fatal shot does not negate Betancourt’s premeditation, his intent to commit murder, or his participation “ ‘in a way that demonstrates willful furtherance’ ” of the crime. State v. Betancourt, 299 Kan. 131, 134, 322 P.3d 353 (2014) (quoting State v. Herron, 286 Kan. 959, 968, 189 P.3d 1173 [2008]). A rational factfinder could easily have concluded that Betancourt was a willing participant in a planned, retaliatory shooting in which he had the premeditated intent to kill whoever stood behind the door of a house where one of Daniel’s attackers had been staying. See Herron, 286 Kan. at 968 (sufficient evidence of aiding and abetting first-degree felony murder; defendant participated in the planning, the mobilization, and the actual shooting attack).
Betancourt essentially asks this court to reweigh the evidence in light of his own trial testimony. The jury and not this court had the duty to weigh the evidence and determine the credibility of the witnesses. The evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational factfinder to find Betancourt guilty of premeditated first-degree murder.
Ineffective Assistance of Trial Counsel Not Established
In Betancourt’s final appellate issue, he contends that he is entitled to a new trial because he received ineffective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution. After the trial but before sentencing, Betan-court wrote a letter to tire trial court complaining about his trial attorney. The court appointed new counsel and conducted a hearing. In the proceedings before the trial court, Betancourt identified two grounds for his ineffective assistance claim: (1) lack of communication and (2) failure to consult an expert or present expert testimony regarding the effects of cocaine and alcohol.
General Principles/ Standards of Review
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985); see State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (noting right is made applicable to the states through the Fourteenth Amendment to the United States Constitution). Strickland established a two-prong test for determining if a criminal defendant’s Sixth Amendment right to effective assistance of counsel has been violated by an attorney’s performance. 466 U.S. at 687-96. Kansas courts adopted this test in Chamberlain, 236 Kan. at 656-57. Under the first prong, a defendant must demonstrate that counsel’s performance was deficient. 236 Kan. at 656. If so, the court moves to the second prong and determines whether there is a reasonable probability that, without counsel’s unprofessional errors, the result would have been different. Strickland, 466 U.S. at 694. In determining whether counsel’s performance was deficient, the defendant must show that
“counsels representation fell below an objective standard of reasonableness. Judicial scrutiny of counsels performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct tire circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.” Chamberlain, 236 Kan. at 656-57.
Here, the trial court conducted an evidentiary hearing on Be-tancourt’s pro se motion. Under those circumstances, this court reviews any factual findings for substantial competent evidence and evaluates whether those findings support the trial court’s conclusions of law. In re Ontiberos, 295 Kan. 10, 32, 287 P.3d 855 (2012); see Thompson v. State, 293 Kan. 704, 715-16, 270 P.3d 1089 (2011) (reviewing K.S.A. 60-1507 evidentiary hearing). The trial court’s legal conclusions are reviewed de novo. See State v. Gonzales, 289 Kan. 351, 358-59, 212 P.3d 215 (2009).
Lack of Communication
At the evidentiary hearing on Betancourt’s motion, his new counsel argued that trial counsel was ineffective because she failed to sufficiently communicate with Betancourt. Betancourt’s new counsel implied that trial counsel’s alleged lack of communication left trial counsel less than prepared for Betancourt’s trial. Trial counsel testified at the evidentiary hearing that she visited with Betancourt approximately seven or eight times before trial. Shortly before Betancourt’s trial was to begin, trial counsel was involved in Alejandro’s trial, which ran a bit longer than anticipated. Because of these demands, trial counsel told Betancourt’s mother that she was not prepared for Betancourt’s trial. But trial counsel requested a continuance of Betancourt’s trial, and the trial court granted the continuance. Trial counsel testified that the continuance gave her the “breathing room” to get “geared up” for Betancourt’s trial.
During trial counsel’s meetings with Betancourt, they discussed, in part, the evidence and Betancourt’s defense theoiy, which was that he had been drinking and recklessly fired bullets into the house. According to trial counsel, Betancourt agreed they should try to avoid a conviction for an off-grid offense—the classification for first-degree murder—and its corresponding life sentence; instead, they “were aiming for . . . second degree reckless” murder and a corresponding shorter sentence on the Kansas Sentencing Guidelines grid. See K.S.A. 21-4704. Trial counsel testified that she told Betancourt “if we’re going to do a guilt-based defense, you have to agree with it, because I can’t say you did something if you’re not. And he understood . . . that our goal was to get him on the grid, ultimately.” Trial counsel further stated: “I didn’t feel like I needed more time with [Betancourt], If I did, I would have said I need more time. Just like I asked for more time when I didn’t have a trial done. ... I felt like we had communicated. We were on the same page about our defense.”
During trial counsel’s testimony, Betancourt’s new counsel produced jail records memorializing trial counsel’s visits with Betan-court. New counsel suggested that trial counsel spent only 3 hours total with Betancourt. But trial counsel estimated that she spent approximately 1 hour with Betancourt on each of her seven or eight jail visits. There was nobody at the hearing who could interpret the jail records for the purpose of calculating trial counsel’s total length of consultation time; hence, the time periods corresponding to trial counsel’s visits could not be independently calculated. Betancourt did not testify. Nor did Betancourt present any expert or other testimony establishing that trial counsel’s efforts fell below an objectively reasonable standard.
After hearing this evidence, the trial court found that the evidence “is not sufficient to undermine this Court’s confidence in the level of communication that [trial counsel] had with this defendant.” Substantial competent evidence—specifically, the evidence we have just summarized—supports the judge’s fact findings. Because trial counsel’s performance was not deficient under the first prong of the Strickland test, there is no need to progress to the second, prejudice prong.
Conflict of Interest
Relying on Galaviz, 296 Kan. 168, Betancourt attempts to morph his lack of communication claim into a conflict of interests due to “multiple concurrent representations.” Betancourt contends trial counsel’s “duty to her other clients on her case load” created a conflict “in that her duties to other clients undermine[d] her ability to give sufficient attention to the interests” of Betancourt. He contends this conflict of interest rendered trial counsel per se ineffective. To qualify for this exception, Betancourt must establish several things, including that the trial court failed to investigate the conflict once Betancourt complained. Galaviz, 296 Kan. at 183 (discussing Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]). Betancourt fails to meet this burden because the record establishes that as soon as Betancourt voiced an objection, the trial court appointed new counsel and conducted an evidentiaiy hearing.
Galaviz also recognized situations in which a defendant is entitled to a new trial for a conflict of interest in which a defendant can establish an adverse effect. In attempting to argue adverse effect, Betancourt notes that trial counsel admitted that she re quested a continuance to prepare for his trial and told Betancourt’s mother that she was not ready to try Betancourt’s case. But Betan-court ignores the fact that the continuance was granted, and trial counsel testified at the evidentiary hearing that the continuance gave her the “breathing room” she needed to get “geared up” for Betancourt’s trial. The trial court apparently agreed. Although the trial court did not specifically consider a conflict of interest, the trial court essentially concluded there was no adverse effect from Betancourt’s trial following soon after Alejandro’s trial.
Again, substantial competent evidence supports that conclusion. The witnesses and evidence at the two trials overlapped. Trial counsel needed to shift gears to evaluate the different focus necessary to Betancourt’s specific case, but she asked for and received that breathing room. Betancourt fails to cite an adverse effect, and the trial judge who observed counsel’s trial performance did not note any. The bottom line is that Betancourt must show more than he has presented here.
Failure to Consult Expert or Present Expert Testimony
In Betancourt’s final argument on appeal, he argues as he did in the district court that his trial counsel was ineffective for failing to consult an expert or present expert testimony regarding the effects of cocaine and alcohol. At the evidentiary hearing, Betancourt’s new counsel presented the testimony of Dr. Mark Goodman, who opined that Betancourt “was unable to fully form the intent to commit [premeditated first-degree murder] because of his intoxicated state and not fully capable of thinking out the crime ahead of time.”
Notably, however, the background information which Goodman used in arriving at his ultimate conclusion came entirely from Be-tancourt himself and Betancourt’s new counsel. Goodman was told to assume that Betancourt had ingested both alcohol-—numerous shots of tequila chased with beer—and cocaine during the evening and early morning hours of the murder. Betancourt did not tell Goodman how much cocaine he allegedly used or how much alcohol he drank. And Goodman did not review any of the evidence from Betancourt’s trial. Therefore, he was unaware that there was no evidence at trial suggesting that Betancourt had used cocaine on the night of the crime and he was unaware that Betancourt had never mentioned cocaine use to law enforcement officers or his trial counsel. Goodman testified at the hearing that even if Betan-court had not used cocaine, this factor would not have changed his professional opinion, as long as Betancourt’s consumption of alcohol had been “excessive.” But Goodman also acknowledged that he did not actually know whether Betancourt drank an excessive amount.
Betancourt’s trial counsel testified that during her investigation of Betancourt’s case and her discussions with him, she became-aware that Betancourt had consumed beer and liquor at the party. And although trial counsel was aware that there was cocaine at the party, nobody, including Betancourt, said Betancourt was using cocaine, and no evidence suggested that he had. As reflected in Betancourt’s statements during his police interrogation, when he was specifically asked if he was under the influence of any drugs, he replied, “No.”
Trial counsel explained she was faced with Betancourt’s statements to law enforcement regarding the amount of alcohol he had consumed, testimony from the arresting officer who observed Be-tancourt operating his car, and Betancourt’s appearance in the recorded interview in which he did not “seem to he blotto or drunk.” She concluded:
“So Üiere was a lot of evidence contraiy to our defense tíiat I think an expert would be hard-pressed to stand up on die stand when crossed widi diat video of how well [Betancourt] is able to communicate, he’s not throwing up, he’s not dizzy, he doesn’t have loss of memory. And then the fact that I have a trained law enforcement officer not consider a DUI at that time. So I have problems with an expert.
. . . And alcohol is one of tiiose tilings where you can argue to a juiy common sense. You know, use your common sense. And I had a lot of evidence that alcohol was there. . . .”
In ruling on this ineffective assistance argument, the trial judge noted that although there was evidence that Betancourt consumed alcohol, there was no evidence at trial showing that Betancourt used cocaine. The judge implicitly found that Goodman’s opinion
was not credible because his “opinions are only as good as all the underlying data” upon which they were based. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011) (appellate court does not reweigh evidence or determine credibility issues). The judge further found that Betancourt “had the ability to consciously think about getting out of the vehicle, walking past two or three houses, walking up to the door, pulling out a gun, pulling the trigger of the gun, and the alcohol did not affect that in any way.” Also, “there’s no evidence now with regard to the hearing today that the use of alcohol in any way affected his ability to form premeditation.” The judge concluded: “I cannot find anything in the evidence presented here today with regard to the lack of communication or the failure to call an expert witness that leads the Court to believe anything other than . . . [trial counsel] did provide effective assistance.”
Trial counsel’s testimony establishes that she made a strategic choice after investigating the facts. “ ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than a complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. [Citation omitted.]’ ” Rowland v. State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009). In advancing his challenge on appeal, Betancourt fails to explain how trial counsel’s investigation was less than complete. In other words, he does not explain what more trial counsel should have done to gather relevant information before deciding whether to consult or present an expert. Nor does he establish that trial counsel’s decision to refrain from seeking tire services of an expert was unreasonable under the circumstances of this case.
Substantial competent evidence supports the trial court’s finding that trial counsel was not deficient in failing to consult or present an expert on the effects of cocaine and alcohol. Under the circumstances, trial counsel’s performance did not fall below an objective standard of reasonableness. Because trial counsel’s performance was not deficient under the first prong of the Strickland test, there is no need to progress to the second, prejudice prong.
Affirmed.
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Buser, J.:
Following a bench trial on stipulated facts, the district court convicted Tony Toliver, a parolee under the supervision of the Kansas Department of Corrections (KDOC), of marijuana possession and sentenced him to 6 months’ probation with an underlying 60-day jail term.
On appeal, Toliver asks us to reverse his conviction. He contends the district court erroneously denied his motion to suppress the marijuana which was found in a search of his residence. Toli-ver asserts his rights under foe Fourth Amendment to the United States Constitution were violated when KDOC parole officers and law enforcement officers searched his apartment without a warrant and without reasonable suspicion of a parole violation or criminal activity.
Upon our review, we hold that Toliver’s Fourth Amendment rights were violated. The plain language of K.S.A. 2014 Supp. 22-3717(lc) requires only that parolees agree to be subject to search or seizure. The “Conditions of Release for Post-Incarceration Supervision” (Parole Agreement) signed by Toliver, however, mandated not only a search of the parolee but also his residence and property. These additional requirements were not statutorily authorized and were at variance with the legislature’s formulation of what constitutes a reasonable expectation of privacy for Kansas parolees.
In order to comply with Fourth Amendment jurisprudence relating to the reasonableness of parolee searches and seizures, the legislature s formulation of a parolee’s diminished privacy interests influences the contours of the Fourth Amendment. Because the Parole Agreement provided that Toliver was not only subject to suspicionless searches and seizures, as provided by Kansas law, but also to searches of his residence and property, we conclude the search of Toliver’s apartment was beyond tíre authorization of K.S.A. 2014 Supp. 22-3717(k) and, therefore, violated the Fourth Amendment.
Accordingly, we reverse Toliver’s conviction and remand the case to the district court to grant the motion to suppress evidence and for further proceedings.
Factual and Procedural Background
The search and seizure issue presented by this appeal has evolved since it was first considered by the district court in a pretrial motion to suppress evidence. For this reason, it is necessary to take a brief trip on the long and winding procedural road that brings us to resolve this particular legal issue on appeal.
After Toliver was charged with possession of marijuana, he filed a motion to suppress tire contraband in district court. The motion asserted that on October 17, 2013, two KDOC parole officers and three Riley County detectives illegally searched Toliver’s apartment. While acknowledging that in order to obtain release on parole Toliver had agreed to subject himself and his residence to warrantless searches, the motion claimed the search was only permissible under the Fourth Amendment if it was made with reason able suspicion th at Toliver had violated a law or a condition of his parole. Toliver alleged the KDOC parole officers and detectives had no such reasonable suspicion to enter his residence and conduct a search.
At the suppression hearing, on December 16, 2013, KDOC Parole Officer Tabitha Neubert was the only witness to testify. Neu-bert testified that she began supervising Tolivers parole on March 26, 2013. The next day, Toliver executed the Parole Agreement. This form set forth 12 requirements that Toliver agreed to comply with during his parole. These conditions, among other tilings, obligated Toliver to obey all laws, not possess weapons, not possess or take illegal drugs or alcohol, maintain employment, comply with all treatment programs, and follow the written guidelines pertaining to reporting, travel, and maintaining a residence.
Of particular relevance to this appeal, Toliver also agreed to condition 12 of the Parole Agreement which provided:
“I agree to:
“12. Search:
“• Be subjected to a search of my person, residence, and any other property under my control by parole officers, any authorized parole staff, and department of corrections enforcement, apprehension and investigation officers with or without a search warrant and with or without cause.
“• Be subjected to a search of my person, residence, and any other property under my control by any law enforcement officer based on reasonable suspicion of violation of conditions of post-incarceration supervision, or reasonable suspicion of criminal activity.” (Emphasis added.)
According to Neubert, on October 17, 2013, she was accompanied by KDOC Parole Officer David Quintanar along with Detectives Daniel Bortnick, Jayson Hubbard, and Brian Johnson when she performed this first “home visit” to Tolivers apartment. The purpose of the visit was to verify that Toliver was actually residing at the address. According to Neubert, neither she nor the detectives had any reason to suspect Toliver was involved in criminal activity or had committed any parole violations.
Neubert explained that while Toliver had never been violent towards her or Quintanar, she was aware of a prior police report indicating that Toliver had been violent towards a law enforcement officer. As a result, she requested law enforcement assistance for safety reasons. At Toliver’s apartment, however, Neubert also directed the detectives to assist her in the search of the residence.
When tire KDOC parole officers and Riley County detectives arrived at the apartment, Toliver let them into the apartment building. Neubert advised Toliver that she “just need[ed] to see around.” Toliver went back upstairs to his bedroom. Upon entering the apartment, Neubert noted that several relatives of Toliver were present. The KDOC parole officers and detectives then conducted “a walk-through” of the apartment. Neubert explained, “I wouldn’t call it [a] search [at that point]. We always look around wherever we go in.”
Neubert testified to three reasons she believed she had authority, pursuant to the Parole Agreement, to instruct the detectives to search Toliver’s apartment. First, Quintanar told her that while “looking around” someone found alcohol in Toliver’s kitchen; and under the Parole Agreement, Toliver is prohibited from drinking alcoholic beverages. Neubert acknowledged that she did not ask Toliver’s relatives if they had brought the alcohol with them because Toliver, the only person living in the apartment, was “responsible for his residence.”
Second, Neubert had been advised by a Riley County detective to “be observant” during the home visit because there might be stolen property in the apartment. During the search of the apartment, Detective Bortnick observed a laptop computer. He asked Toliver who owned the laptop, and Toliver responded that “it belonged to his sister’s boyfriend [or] husband.” According to Néubert, however, Detective Bortnick seized the laptop because he suspected it was stolen.
Third, Neubert believed Toliver “was acting suspicious, like hovering around the corner of his bed.” According to Neubert, Toliver “[j]ust seemed really nervous”; “he was just pacing back and forth and just acting fidgety and staying right there.” As a result, Neu-bert directed Detective Johnson to search the bed, whereupon the detective found a small baggie of marijuana underneath the left corner of the bed. This was die same location where Toliver had been “hovering” prior to the search.
At the conclusion of the evidence and arguments, the district court took the motion to suppress under advisement. Shortly thereafter, on December 20,2013, the district court ruled from the bench, denying the motion and making detailed factual and legal findings.
At the outset, the district court found the KDOC parole officers and detectives did not have any particularized reasonable suspicion that Toliver had engaged in criminal wrongdoing at the time they entered the apartment or immediately prior to discovery of the marijuana. Moreover, the district court found that prior to discovery of tire marijuana it was questionable whether any parole violation had been shown.
The district court cited State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009), for the proposition that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee . . . authorized by State law, as long as such searches are not arbitrary or done for harassment purposes.” (Emphasis added.) The district judge stated he had been unable to locate any Kansas law that authorized such searches; however, he determined “the law in Kansas is based [on]” KDOC’s Internal Management Policies and Procedures (IMPP). The district court assumed that the IMPP authorized such a search based on the language in To-livers Parole Agreement. And, in the district courts estimation, in the absence of action by the Kansas Legislature, the IMPP controlled the legality of the search and seizure. The district court also found that, in keeping with condition 12 of the Parole Agreement, the search was not arbitrary or capricious.
In denying Tolivers motion to suppress, the district court ruled that while the evidence demonstrated that neither the KDOC parole officers nor the detectives had reasonable suspicion of any parole violation or crime, the search of the apartment was constitutional because Toliver signed the Parole Agreement which mandated that he was subject to suspicionless searches by the KDOC parole officers. The district court also concluded that the detectives were operating at the direction of Neubert.
The parties agreed to submit the case to the district court for a bench trial based on stipulated facts. The district courts denial of Toliver’s motion to suppress evidence, however, was reserved for appeal. Toliver was convicted of possession of marijuana, in violation of K.S.A. 2014 Supp. 21-5706(b)(3), based upon the following stipulated facts:
“• On October 17, 2013, Tabitha Neubert, KDOC parole officer assigned to [Toliver], conducted a home visit at [Toliverfs residence . . . , which is in Manhattan, Riley County, Kansas.
“• Accompanying Tabitha Neubert were David Quintanar, KDOC parole officer, Detectives Brian Johnson, Daniel Bortnick, and Jayson Hubbard.
“• At the residence, Tabitha Neubert made contact with . . . Toliver, who answered tire door to his apartment complex and then returned upstairs to his apartment. [Toliver] appeared to have just woken up. There were other individuals in the residence besides [Toliver] and those who accompanied Tabitha Neubert; however, [Toliver] had indicated to Tabitha Neubert that he was the sole resident of the apartment.
“• Upon looking around the residence, an empty bottle for alcohol was found in the trash can in the kitchen in plain view. The parole officers determined this was in violation of [Toliver] s parole conditions. In addition, Tabitha Neubert observed [Toliver] acting suspicious, hovering and acting fidgéty around his beds.
“• Based on [Toliver]⅞ parole conditions the officers believed they had reasonable suspicion to search [Toliverfs residence. Detective Johnson lifted tire mattress of [Toliverjs bed, where he had been located, and found a cellophane wrapper that appeared to contain marijuana. Detective Hubbard later tested this item and it field tested positive for THC.
“• At the residence [Toliver] made a statement nearly identical to ‘That’s my weed.’ A parole officer asked when [Toliver] last ingested marijuana and he stated recently.
“• After being arrested and transpprted to the Riley County Police Department and after being advised of Miranda [Toliver] told Detective Hubbard that a woman brought the marijuana over to his house and left it. [Toliver] stated he found it when he woke up, so he put it under his mattress to keep someone from stealing it or one of the children from taking it. [Toliver] stated he intended to call the woman and return it to her; however, he would not give Det. Hubbard her name.”
On May 5, 2014, Toliver was sentenced to 6 months’ probation with an underlying jail term of 60 days. Toliver then filed this timely appeal. Of note, dúring the pendency of this appeal Toliver successfully completed his misdemeanor probation.
Subsequent to the filing of the appellant’s and appellee’s briefs, our court issued an order that read, in relevant part:
“Based on the record on file in the office of the Clerk of the Appellate Courts, it appears K.S.A. 2012 Supp. 22-3717(k) may be applicable to the search at issue in this case. Accordingly, because neither party cited or referenced this statute in tire briefs on appeal, the parties are directed to file supplemental briefing.... The submission should address the following question:
‘“Does K.S.A. 2012 Supp. 22-3717(k) apply to this case? If so, what is the effect, if any, of this statute upon the issue on appeal—whether the search of Toli-vers residence violated the 4th Amendment to the United States Constitution?’ ”
Both parties filed supplemental briefs prior to oral arguments.
The Right of KDOC Parole Officers to Subject Parolees to Suspicionless Searches and Seizures under the Fourth Amendment
When, as in this case, the material facts to a district courts decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court exercises unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014).
Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The exclusionaiy rule, a judicially created remedy, operates to protect Fourth Amendment rights through deterrence by preventing the use of unconstitutionally obtained evidence against the subject of the illegal search/seizure. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011).
Of particular relevance to this appeal, parolees and probationers “ ‘have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities “reasonable” which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands.’” 5 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 10.10(c), p. 533 (5th ed. 2012).
Preliminarily, the parties’ arguments in the district court, the district courts ruling, and the parties’ initial briefs on appeal were all premised upon a misunderstanding of Kansas law—that the Kansas Legislature had not authorized suspicionless searches of parolees. On tire contrary, at the time Toliver executed the Parole Agreement, K.S.A. 2014 Supp. 22-3717(k)(2) specifically authorized KDOC parole officers to conduct suspicionless searches of parolees without a search warrant and without cause. K.S.A. 2014 Supp. 22-3717(k)(2) and (3) provide:
“(2) Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to search or seizure by a parole officer or a department of corrections enforcement, apprehension and investigation officer, at any time of the day or night, with or without a search warrant and with or without cause. Nothing in this subsection shall be construed to authorize such officers to conduct arbitraiy or capricious searches or searches for the sole purpose of harassment.
“(3) Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to search or seizure by any law enforcement officer based on reasonable suspicion of die person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity. Any law enforcement officer who conducts such a search shall submit a written report to the appropriate parole officer no later dran the close of the next business day after such search. The written report shall include the facts leading to such search, the scope of such search and any findings resulting from such search.” (Emphasis added.)
Our court acknowledged this statute in State v. Chapman, 51 Kan. App. 2d 401, 409, 347 P.3d 700 (2015). We understood that, as amended in 2012, this statute mandated that parolees agree, in writing, to be subject to warrantless search or seizure by a KDOC parole officer at any time, with or without cause, and by any law enforcement officer based on reasonable suspicion of a parole violation or criminal activity. L. 2012, ch. 70, secs. 2 and 3; see Chapman, 51 Kan. App. 2d at 413. We will return to Chapman later in our analysis.
In Toliver’s supplemental brief he concedes that, as a parolee, he has a “greatly diminished expectation of privacy,” especially because he was informed that he may be subject to search or seizure by a KDOC parole officer as a condition of release on parole. But Toliver also maintains “the initial entry into the home must be justified” by the provisions of K.S.A. 2014 Supp. 22-3717(k).
Toliver focuses his briefing on the presence of the detectives during the search: “Given that this was a search by law enforce ment, and not KDOC, then K.S.A. [2014 Supp.] 22-3717(k)(3) should be the specific section to apply.” According to Toliver, the detectives violated tins statute because at the time the apartment was entered, as found by the district court, there was no reasonable suspicion that Toliver had violated his parole or engaged in criminal activity. Toliver characterizes the search as an impermissible “fishing expedition” that was arbitrary and capricious. At oral argument, in response to questions from our court, Toliver also maintained that K.S.A. 2014 Supp. 22-3717(k) only applies to searches of parolees, not their residences or property.
In its supplemental briefing, the State agrees with Toliver that, as a parolee, he has “significantly diminished” privacy interests. The State also agrees that K.S.A. 2014 Supp. 22-3717(k) is applicable to this case “because it sets the parameters for reasonableness of a search of a parolee in Kansas, while staying within the bounds of the Fourth Amendment.” Citing Samson v. California, 547 U.S. 843, 844, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), the State considers K.S.A. 2014 Supp. 22-3717(k) an “expression that Kansas follows the precedent recognized by the Supreme Court of the United States; that suspicion-less searches of parolees are reasonable under the Fourth Amendment.”
The State counters Tolivers argument that, under the circumstances, the detectives should not have participated in the search. Because K.S.A. 2014 Supp. 75-5217(a) gives authority to a KDOC parole officer to deputize any other officer with arrest power, the State extrapolates that “the legislators intended wide discretion for parole officers to conduct searches.” The State concludes: “The statute clearly gives the parole officer authority to search the defendant’s home; requesting die assistance of other law enforcement officers to assist in the search does not make it unreasonable.”
Resolution of this appeal, as clarified by the parties’ supplemental briefing and oral arguments, requires our interpretation of the Fourth Amendment to the United States Constitution and K.S.A. 2014 Supp. 22-3717(k) and will determine whether the KDOC parole officers’ search of Toliver’s residence was in compliance with our Constitution and Kansas law.
A summaiy of our rules of statutory construction is in order. In terpretation 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). Our 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). To ascertain legislative intent, we first look at the statutory language, giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (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. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Finally, where there. is no ambiguity, our 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. Phillips, 299 Kan. at 495.
At the outset, we read the plain language of K.S.A. 2014 Supp. 22-3717(k)(2) to require that parolees agree in writing to be subject to search or seizure by a KDOC parole officer, day or night, with or without a search warrant and with or without cause. Thus, in Kansas, Toliver was required to agree in writing to be subject to a suspicionless search and seizure by Neubert during the pendency of his parole. As discussed more fully later, K.S.A. 2014 Supp. 22-3717(h) thus establishes and defines a significantly diminished expectation of privacy for parolees in our state.
It is apparent, however, that the provisions of K.S.A. 2014 Supp. 22-3717(k) which legislatively defined Tolivers diminished privacy interests are at variance with condition 12 of the Parole Agreement that Toliver was required to sign prior to release on parole. While the statute addresses parolees being subject to suspicionless searches and seizures, the Parole Agreement required Toliver to be subjected “to a search of [his] person, residence, and any other property under [his] control by parole officers . . . with or without a search warrant and with or without cause.” (Emphasis added.)
In short, the diminished privacy interests as formulated by K.S.A. 2014 Supp. 22-3717(k) relate only to the parolee personally, unlike the diminished privacy interests set forth in condition 12 of the Parole Agreement which relate not only to the parolee but also to the parolee’s residence and property. Quite simply, condition 12 of the Parole Agreement more severely limits Toliver’s privacy interests than Kansas law allows..
At this point we must address the dissents reference to contrary dicta in Chapman. The issue in Chapman was whether the State could invoke K.S.A. 2012 Supp. 22-3717(k)(3) to support a police search of a parolee’s home when the parolee had not actually signed a written parole agreement. The panel focused on statutory language which required that “a parolee ‘shall agree in writing.’ ” 51 Kan. App. 2d at 413 (quoting K.S.A. 2012 Supp. 22-3717[k][3]). This court held that “a parolee’s written agreement is, in fact, a condition for a law enforcement officer’s search of a parolee’s home based on reasonable suspicion.” 51 Kan. App. 2d at 413.
The dissent states that although the Chapman panel thoroughly examined the statute, it “nowhere intimated that the statute may limit the object of the search to a parolee’s person.” 52 Kan. App. 2d at 363 (Gardner, J., dissenting). But the issue that Toliver presents for our consideration was never raised, briefed, or argued in Chapman. And as our colleague properly points out at the beginning of her dissent, as a general rule, appellate courts will not address issues not raised and briefed on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). The Chapman panel was never asked whether the statutory language in K.S.A. 2014 Supp. 22-3717(k)(2) applies to the search qf a home at all.
Moreover, “ ‘[d]icta in a court opinion is not binding, even on the court itself, because the court should consider the issue in light of the briefs and arguments of counsel when the question is squarely presented for decision/ [Citation omitted.]” State v. Cummings, 297 Kan. 716, 725-26, 305 P.3d 556 (2013). Having considered the question squarely presented to us by the supplemental briefing and oral arguments, we cannot ignore the conflict between K.S.A. 2014 Supp. 22-3717(k)(2) and the Parole Agreement in the present case.
What is the constitutional significance of this variance between K.S.A. 2014 Supp. 22-3717(k)(2) and condition 12 of the Parole Agreement? Viewed, simply based on the stipulated case facts, Toliver was not subjected to a suspicionless search and seizure as authorized by Kansas law. Rather, Tolivers residence was subjected to a suspicionless search as permitted by condition 12 of the Parole Agreement. Importantly, the fact that the Parole Agreement permitted a search and seizure not authorized by Kansas law implicates the Fourth Amendment.
The United States Supreme Court has upheld a California law, similar to our Kansas statute, which required that parolees “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer[, which is not arbitrary, capricious, or harassing,] at any time of the day or night, with or without a search warrant and with or without cause/ [Citation omitted.]” Samson, 547 U.S. at 846. In Samson, a police officer conducted a suspicion-less search of Samsons person and the California Court of Appeals deemed the search constitutional under the authority of the California law. The United States Supreme Court subsequently granted certiorari to “answer a variation of the question . . . left open in United States v. Knights, 534 U.S. 112, 120, n.6[, 122 S. Ct. 587, 151 L. Ed. 2d 497] (2001),” i.e., whether a release condition can so diminish or eliminate a released prisoners reasonable expectation of privacy that a suspicionless search would not offend the Fourth Amendment. Samson, 547 U.S. at 847.
To determine the constitutionality of the search, the Samson majority examined the “’totality of the circumstances ... by assessing, on the one hand, the degree to which [the search] intrude[d] upon [Samson]’s privacy and, on the other, the degree to which it [was] needed for the promotion of legitimate governmental interests.’ [Citation omitted.]” 547 U.S. at 848. With respect to Samson’s privacy interests, the majority explained that “parolees . . . have severely diminished privacy expectations by virtue of their status alone” because “ parole is an established variation on imprisonment of convicted criminals.’” 547 U.S. at 850-52. The majority then determined that Samson did not have “an expectation of privacy that society would recognize as legitimate,” as it found “ ‘salient’ ” the fact that the parole search condition was “ ‘clearly expressed’ ” to Samson when he signed an order submitting to the condition. 547 U.S. at 852. The majority concluded that Samsons unambiguous awareness of the condition “ ‘significantly diminished [his] reasonable expectation of privacy.’” 547 U.S. at 852.
Regarding California’s concerns, the majority explained that states have “an “ ‘overwhelming interest’ ” in supervising parolees because ‘parolees.. . are more likely to commit future criminal offenses.’ [Citation omitted.]” 547 U.S. at 853. Likewise, “a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.” 547 U.S. at 853. The majority then noted that the California Legislature’s finding that imposing an individualized suspicion requirement upon parolee searches would undermine its ability to effectively supervise parolees and promote public safety made “eminent sense” due to Californias 68% to 70% recidivism rate among its parolee population. 547 U.S. at 853-54.
After balancing Samson’s diminished privacy interests with California’s need to effectively supervise its parolees, the majority held: “The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” 547 U.S. at 857. In reaching this conclusion, the majority rejected Samson’s observation that “the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting reintegration, despite having systems that permit parolee searches based upon some level of suspicion.” 547 U.S. at 855. The majority explained:
“[Samson] s reliance on die practices of jurisdictions other Üian California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California’s supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee’s substantially diminished expectation of privacy.” 547 U.S. at 855.
In Toliver’s case, like Samson, we are presented with a state law that defines a parolee s diminished expectation of privacy and authorizes what the legislature deems a reasonable search under the circumstances. This legislative formulation of a parolee’s diminished privacy interests and authorization to search is critical for Fourth Amendment analysis. Although Samson focused on the legality of a California statute, it has been interpreted as standing for the proposition that “’[t]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee’ when such a search is authorized by state law. [Citation omitted.]” (Emphasis added.) United States v. Mabry, 728 F.3d 1163, 1167 (10th Cir. 2013), cert. denied 134 S. Ct. 1354 (2014).
In Mabry, the Tenth Circuit Court'of Appeals explained how individual state laws relating to parolee searches may set the parameters of what constitutes a reasonable search and seizure under the Fourth Amendment:
“[I]n Samson, ‘[t]he Court noted “that some States and the Federal Government require a level of individualized suspicion,” and strongly implied that in such jurisdictions a suspicionless search would remain impermissible.’ [Citations omitted.] Thus, ‘[p]arolee searches are ... an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.’ [Citation omitted.]” (Emphasis added.) 728 F.3d at 1167 (quoting United States v. Freeman, 479 F.3d 743, 747 [10th Cir. 2007]).
Our Supreme Court also has weighed in regarding Sampson in State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009). In Bennett, the Kansas Supreme Court considered whether a condition of probation that required the probationer to submit to random, noncon-sensual, suspicionless searches violated the Fourth Amendment. Noting that the United States Supreme Court in Sampson posited the question before the Court as “ whether a suspicionless search, conducted under the authority of this statute [, Cal. Penal Code Ann. § 3067[a] [West 2000], violates the Constitution,’ [citation omitted,]” our Supreme Court concluded: “After Samson, it is clear that parolees may be subjected to suspicionless searches authorized by state law as long as such searches are not arbitrary or done for harassment purposes.” (Emphasis added.) Bennett, 288 Kan. at 95-96.
Consistent with Sampson’s and Bennett’s holdings, we conclude that K.S.A. 2014 Supp. 22-3717(l<) defines the diminished privacy interests of Kansas parolees and sets the parameters by which a parolee may be subject to a reasonable search and seizure under the Fourth Amendment. Consistent with the diminished privacy interests, K.S.A. 2014 Supp. 22-3717(k)(2) allows KDOC parole officers to subject parolees to suspicionless searches and seizures. The statute does not, however, empower KDOC parole officers to further infringe upon the privacy expectations of parolees by sanctioning the suspicionless searches of their residences and other property under their control as provided by the Parole Agreement. As a result, the variance between K.S.A. 2014 Supp. 22-3717(k)(2) and Tolivers Parole Agreement is consequential. While the Kansas Legislature has clearly authorized suspicionless searches of a parolee, it has not authorized suspicionless searches of the parolee’s residence or property.
Without the essential statutory authorization promulgated in K.S.A. 2014 Supp. 22-3717(k)(2), we conclude that condition 12 of the Parole Agreement providing for suspicionless searches of To-liver’s residence or any other property under the parolee’s control violates the Fourth Amendment. As a result, the contraband seized from Toliver’s residence should have been suppressed under the exclusionary rule. See State v. Morris, 276 Kan. 11, Syl. ¶ 8, 72 P.3d 570 (2003).
Our holding that K.S.A. 2014 Supp. 22-3717(k) does not authorize the suspicionless search of a parolee’s residence is based upon a plain reading of the statute. This plain reading, however, is supported by a related 2012 amendment. In the same act which amended K.S.A. 2014 Supp. 22-3717, the legislature also amended K.S.A. 2014 Supp. 21-6607, the statute controlling the conditions of probation or suspended sentence. See L. 2012, ch. 70, secs. 1 and 2. In this amendment, the legislature directed drat probationers shall “be subject to searches of the defendant’s person, effects, vehicle, residence and property by a court services officer, a community correctional services officer and any other law enforcement officer based on reasonable suspicion of the defendant violating conditions of probation or criminal activity.” (Emphasis added.) K.S.A. 2014 Supp. 21-6607(c)(5). It is noteworthy that in 2012, in the very same act, the Kansas Legislature established very different provisions relating to search and seizure for individuals in analogous postconviction situations—parolees and probationers.
Our dissenting colleague asserts it is unreasonable to conclude from this difference in language that the legislature intended to grant parolees greater privacy rights than probationers. But it is not for us to question the wisdom or second-guess the actions of the legislature in its formulation of differing privacy expectations and authorizing different kinds of searches for parolees and probationers. That is not the court’s role. We are required, however, to follow the well-known rule of statutory construction: Where the legislature has demonstrated an ability to express its intent through clear statutory language, courts will not read that same intent into another statute where the legislature has omitted such language. See State v. Hopkins, 295 Kan. 579, 584, 285 P.3d 1021 (2012); State v. Lovett, 17 Kan. App. 2d 450, 453, 839 P.2d 53, rev. denied 252 Kan. 1094 (1992).
We must take the legislature at its word. If it intended for Kansas parolees to be subject to searches of their residences and property, it is apparent the legislature knew how to draft that specific language—if only because the legislature did, in fact, use that specific language in the same act when addressing the search and seizure rights of probationers.
Given our holding suppressing the contraband found in Tolivers apartment, we decline to address the second issue raised by Toliver that the search of Tolivers apartment by tire detectives violated K.S.A. 2014 Supp. 22-3717(k)(3) because the law enforcement officers did not have reasonable suspicion that Toliver had violated the conditions of his parole or engaged in criminal activity.
Toliver’s conviction is reversed, and the case is remanded to the district court with directions to grant the motion to suppress evidence and for further proceedings. | [
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Johnson, J.:
Julian Castillo appeals from his jury convictions for possession of marijuana with the intent to stell within 1,000 feet of a school, possession of drug paraphernalia, and possessing drugs without a drug tax stamp. Castillo presents three challenges: (I) the prior crimes evidence was not sufficiently similar to the current crime to be relevant on the issue of intent and did not apply to the issue of knowledge; (2) the prosecutor’s comments in closing argument invoked invidious stereotypes which denied Castillo a fair trial; and (3) the possession of drug paraphernalia charge, based on the clear plastic bag which held the marijuana, was multiplicitous with the possession of marijuana charge. We reverse the possession of drug paraphernalia conviction and affirm the remaining convictions.
On April 9, 2003, an individual, who was later identified, contacted the police to say that she had recently left a residence where she had purchased marijuana from Julian Castillo. Police obtained and executed a search warrant at the residence described by the informant. The usual residents of the searched house were Castillo, his brother Ricardo, his sister-in-law Maria Suarez-Vega, and her three children. However, at the time of the search, Ricardo was in jail.
As part of the search, an officer asked Castillo for the key to open a padlock which secured an unattached garage. Castillo complied with the request by handing the officer a key chain full of keys and pointing out the padlock key. In a small refrigerator inside the garage, the officer discovered a brown shirt covering a clear plastic bag containing green vegetation, which was later identified as 130.15 grams of marijuana. Castillo said that he had never seen the vegetation before but believed that it belonged to his brother’s friend. A jury convicted Castillo on all counts.
K.S.A. 60-455 EVIDENCE OF PRIOR CRIMES
The district court permitted the State to introduce journal entries reflecting Castillo’s two prior convictions for possession of cocaine with the intent to sell, deliver, or distribute the drug. The evidence was admitted pursuant to K.S.A. 60-455, which reads:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occ^ion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
To admit prior crimes evidence under K.S.A. 60-455, three requirements must be met: (1) the evidence must be relevant to prove one of the facts specified by statute; (2) the fact must be a disputed, material fact; and (3) the probative value of the evidence must outweigh its potential prejudice. If the three requirements are met, the standard for appellate review is whether the court abused its discretion. State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002).
The jury was instructed that the evidence tending to prove that Castillo committed other crimes was to be considered solely for the purpose of proving the defendant’s intent or knowledge. Castillo first argues that, because the district court relied on the statutorily designated facts of knowledge and intent, we are restricted to those issues. He cites to State v. Vinyard, 32 Kan. App. 2d 39, 46, 78 P.3d 1196 (2003), rev. denied 277 Kan. 927 (2004), which cited to State v. McCorgary, 224 Kan. 677, 686, 585 P.2d 1024 (1978), for the proposition that an erroneous admission of evidence under one K.S.A. 60-455 exception is not rendered harmless merely because the evidence would have been admissible under another exception. However, McCorgary did not say that an appellate court cannot consider whether another 60-455 exception might apply, but rather the holding is that the applicability of another exception does not always render harmless the erroneous admission upon an inapplicable exception.
Castillo contends that here, knowledge was not in issue, but concedes that intent was an issue. We note that the concession that intent was a disputed material fact may not have been totally supported by precedent. See State v. Capps, 33 Kan. App. 2d 37, 41, 99 P.3d 138 (2004) (intent not a disputed material fact where defendant/passenger denied knowing that automobile contained con traband); State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 4, 65 P.3d 1078 (2003) (“A defendant is required to have asserted an innocent explanation for charged conduct before intent will be considered a disputed material issue and K.S.A. 60-455 evidence admitted to demonstrate its existence.”).
With respect to knowledge, Castillo acknowledges the existence of Kansas Supreme Court cases in which the court permitted the admittance of prior drug convictions where the defendant denied knowing about the drugs. See, e.g., State v. Tolson, 274 Kan. 558, 561-66, 56 P.3d 279 (2002) (prior drug acts admitted to prove knowledge, motive, and plan after the defendant was charged with felony murder committed while attempting to commit or in flight from the crime of sale of marijuana); State v. Graham, 244 Kan. 194, 196-98, 768 P.2d 259 (1989) (prior narcotic convictions were admitted to show knowledge, intent, and absence of mistake or accident after the defendant was charged with possession of marijuana, methamphetamine, and cocaine); State v. Faulkner, 220 Kan. 153, 155-58, 551 P.2d 1247 (1976) (court upheld the admittance of a prior conviction of possession of a controlled substance with the intent to sell to prove knowledge, intent, and absence of mistake when the current charge was for possession of a controlled substance). Castillo contends these cases misconstrue the nature of the knowledge exception.
Castillo makes an enticing argument. It is often difficult to shoehorn relevant prior crimes evidence into the definition of one of the specifically listed exceptions. One could argue that the overarching purpose of the evidence that Castillo committed the crime of cocaine possession with the intent to sell on specified prior occasions was to prove his disposition to deal drugs and thereby create the inference that it was he who possessed the marijuana with intent to sell it. Such character propensity reasoning is the very thing that is prohibited by K.S.A. 60-455. However, we are mindful of our duty to follow Supreme Court precedent. See State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002).
The State relies heavily on the fact that this case presented a situation in which Castillo was in nonexclusive possession of the premises upon which a controlled substance was found. We agree that the evidence established that Castillo had a level of control over the premises where the drugs were found, albeit the control was not to the exclusion of others. Thus, the nonexclusive possession circumstance impacts on the relevancy of the prior crimes evidence. The district court gave the jury an instruction on the definition of possession of a controlled substance, which was taken directly from PIK Crim. 3d 67.13-D and which contained the following paragraph:
“When a defendant is in nonexclusive possession of the premises upon which a controlled substance is found, it cannot be inferred that the defendant knowingly possessed the controlled substance unless there are other circumstances linking the defendant to the controlled substance. Factors you may consider in determining whether the defendant knowingly possessed the controlled substance include:
1. Defendant’s previous participation in the sale of a controlled substance;
2. Defendant’s proximity to the area where the controlled substance was found; and,
3. Proximity of defendant’s possessions to the controlled substance.”
Therefore, Castillo’s previous participation in the sale of a controlled substance was declared to be a factor for the jury to consider in determining whether Castillo possessed the marijuana. Regardless of which K.S.A. 60-455 exception we deem applicable, Castillo’s prior convictions for possession of a controlled substance with intent to sell it are obviously relevant under the possession instruction. Castillo denied that he possessed the marijuana, making the issue a disputed material fact.
After conceding that intent was in issue, Castillo argued that evidence of convictions for possessing cocaine with intent to sell was too dissimilar to the charge of possessing marijuana with intent to sell and, therefore, did not satisfy the requirement that the prior crimes evidence be more probative than prejudicial. The suggestion is that evidence of defendant’s having possessed one type of drug is not relevant to defendant having possessed another type of drug. We disagree. “Evidence is relevant if it has any tendency in reason to prove a material fact (K.S.A. 60-401[b]), or if it renders the desired inference more probable than it would be without the evidence. [Citation omitted.]” Faulkner, 220 Kan. at 155. The rel evancy connection is drawn from the fact that now, as well as previously, Castillo possessed drugs with the intent to sell them, i.e., he is a recidivist drug dealer. The fact that Castillo has not restricted himself to dealing in one type of drug does not destroy the relevancy.
In short, the State met the requirements for admittance of the prior crimes evidence. The evidence was critical for the State to combat Castillo’s theory of defense, i.e., somebody else with access to the garage possessed the marijuana. We decline to find that the district court abused its discretion in admitting the journal entries of Castillo’s prior convictions.
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
Castillo claims the prosecutor committed misconduct during his closing argument, when he argued:
“Take another hypothetical situation. You have two sons. One’s 13 and one’s five. You have land of a small house so they have to share a room .... You clean the room and find a Playboy magazine sitting in a drawer. Now, who do you suspect is the proprietor or the owner of the Playboy magazine? Is it going to be your five-year-old or 13-year-old son, who is verging on adolescence? That’s not very difficult to figure out, and we suggest to you the same thing is applicable in this case. Did Mrs. Vega, the mother of three who was the lessee of the house and knew nothing — said she knew nothing about that residence, was she the possessor of that marijuana or was the defendant?”
Castillo did not object to the comments, but our standard of review is the same, regardless of whether an objection was made at trial. Reversible error based on prosecutorial misconduct must show the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). We use the now familiar two-step process of first considering whether the comments were outside the wide latitude for language and manner that a prosecutor is allowed when discussing the evidence; then, if so, we decide whether the prosecutor’s remarks constitute plain error, i.e., whether the statements are so gross and flagrant as to prejudice the juiy against the defendant and deny the defendant a fair trial, requiring reversal. 275 Kan. at 121. Factors to consider under the second step are whether the comments show ill will by the prosecutor, whether the evidence against the defendant was so overwhelming that the prosecutors misconduct had little or no likelihood to have changed tire result of the trial, and whether the trial court sanctioned the comment. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
During closing arguments, a prosecutor should refrain from making statements that may inflame the passions and prejudices of the jury or divert tire jury from deciding the case on the evidence. The prosecutor may not introduce or comment on facts outside of the evidence presented, but reasonable inferences may be drawn based on the evidence and considerable latitude is allowed in discussing it. State v. Duke, 256 Kan. 703, 719-20, 887 P.2d 110 (1994).
Evidence was presented to establish the facts argued by the prosecutor, e.g., that Maria was the mother of three children and that she denied having any knowledge of the marijuana. Evidence was also presented that Castillo had previously been convicted of possessing cocaine with the intent to sell. Once the decision is made to permit the prior crimes evidence as a factor to be considered in determining a nonexclusive possession case, the State should be permitted to argue the reasonable inferences to be drawn from that evidence. The State did not exceed the bounds of fair argument.
MULTIPLICITY
The possession of drug paraphernalia charge was based upon die clear plastic bag which held the marijuana. Castillo argues that his convictions for possession of marijuana and possession of drug paraphernalia are multiplicitous, because the plastic “bag was an inherent part of the normal method of possession of marijuana.” The question of whether convictions are multiplicitous is one of law and, therefore, is subject to unlimited review. State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).
“ ‘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.’ ” State v. Schuette, 273 Kan. 593, 600, 44 P.3d 459 (2002) (quoting State v. Garcia, 272 Kan. 140, 143, 32 P.3d 188 [2001]). The concept is founded on constitutional principles, specifically the “Double Jeopardy Clause of the Fifth. Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” Robbins, 272 Kan. at 171.
The State points to K.S.A. 2004 Supp. 21-3107(1), which specifically permits the charging of more than one crime in separate counts for the same conduct, unless one of the exceptions of K.S.A. 2004 Supp. 21-3107(2) applies. Those exceptions include the circumstance where one count is a lesser included offense of another count or where all of the elements of one crime are identical to some of tire elements of another charged crime. Thus, although our Constitutions prohibit the splitting of a single offense into several counts, our statutes permit multiple counts if “ ‘a single transaction may constitute two separate and distinct offenses.’ ” Robbins, 272 Kan. at 171 (quoting State v. Vontress, 266 Kan. 248, 256, 970 P.2d 42 [1998]); see State v. Mincey, 265 Kan. 257, 263, 963 P.2d 403 (1998). Decisions making that distinction have not always left a clear road map for analyzing multiplicity. See Garcia, 272 Kan. at 142 (multiplicity “has been a highly confusing subject in Kansas law, and our prior cases have not always been clear”).
Our courts have utilized an elements test. “The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous. [Citation omitted.]” State v. Stevens, 278 Kan. 441, 447, 101 P.3d 1190 (2004); cf. State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004) (applying single act of violence test, rather than elements test).
The jury was instructed that, to find Castillo guilty of the paraphernalia charge, the State had to prove: “That Mr. Castillo knowingly possessed with the intent to use drug paraphernalia, to-wit, a clear plastic bag, to pack, repack, sell, or distribute marijuana.” It is not unlawful to possess a clear plastic bag; that possession becomes a crime only when coupled with an intent to use the bag to pack, repack, sell, or distribute marijuana. Here, the State’s proof of that intent was that the bag was actually being used to hold the marijuana which Castillo intended to sell.
Granted, our Supreme Court has opined that “ fmjultiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other. [Citations omitted.]’ ” 272 Kan. at 171 (quoting Vontress, 266 Kan. at 256). However, when the drug paraphernalia is rendered unlawful because of its intended use, that crime would logically merge into the primaiy offense when the paraphernalia is actually employed in its intended use. Cf. Capps, 33 Kan. App. 2d at 44-45 (suggesting it is impermissible to split manufacturing methamphetamine into necessary component parts of possessing ephedrine with intent to manufacture methamphetamine, etc.). For example, cigarette paper that is rolled around marijuana to form a joint no longer maintains its status as drug paraphernalia, but rather has become part of the marijuana being possessed. So, here, the clear plastic bag was no longer being possessed with intent to use it to pack marijuana in the future; it became an integral component of the offense of marijuana possession. Castillo possessed one bag of marijuana. Splitting that single offense into two counts was constitutionally impermissible. The possession of drug paraphernalia conviction is reversed.
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PlERRON, J.:
Scott G. Lafleur appeals his jury trial convictions for the sale of methamphetamine and the unlawful use of a communication facility. We affirm.
On December 4, 2003, Lafleur was charged with the sale of methamphetamine, in violation of K.S.A. 65-4161; possession of methamphetamine without drug tax stamps affixed, in violation of K.S.A. 79-5204; possession of drug paraphernalia, in violation of K.S.A. 65-4152(a)(2); and unlawful use of a communication facility, in violation of K.S.A. 65-4141.
These charges stemmed from events which occurred on July 31, 2003.
Kamisha Hill testified that her home was the subject of a search warrant on July 17, 2003. She was arrested and questioned about drug activity. Subsequently, Hill entered into an agreement with the police department’s drug task force (DTF) to provide information and complete controlled drug buys related to further investigations. The DTF did not provide her with a name or targeted individual; however, she was able to provide them with the name of Scott Lafleur, “a longtime friend.” On the night in question, she contacted Lafleur on his cell phone. They briefly discussed her buying an “8-ball” of illegal drugs from him for $300.
Hill contacted Investigator Watkins of the DTF and told him about her conversation with Lafleur. She met with DTF members to be searched and wired. The DTF also provided her with $300 for the controlled buy. Hill called Lafleur’s cell phone a second time, but his girlfriend, Amber Gray, answered. Lafleur then got on the phone and suggested a place and time for them to meet.
Approximately 10 minutes later, Hill drove to the Petro 2 station and met Lafleur and Gray. Hill approached the driver’s side of Lafleur’s vehicle and spoke to Lafleur. Lafleur asked Hill about the hat she was wearing and suggested that Hill was a “narc.” Hill told him if he did not trust her to “forget it.” At that time, Gray got out of Lafleur’s car and into Hill’s vehicle, saying she needed barbecue sauce from a fast food restaurant’s drive-through. Hill did as Gray requested and, between the drive-through’s windows, Gray handed Hill a ziploc bag in exchange for the $300. Gray then had Hill “drive around a bit.” Lafleur had remained in his vehicle throughout this time. Gray got out of Hill’s car and Hill went directly to meet DTF officers.
Lafleur had a contrary version of the events of July 31, 2003. Lafleur claimed he was driving around with Gray, who was just a friend he gave rides to when needed, when Hill called his cell phone. Lafleur did not know what Hill wanted because she was acting “in a strange way.” Gray suggested they “go see what [Hill] wants,” so Lafleur drove to the Petro 2 station. He claims it was not his idea to meet Hill.
Lafleur and Gray went through the fast food restaurant’s drive-through to get food. Gray got out of Lafleur’s car to complete her food order, which lacked barbecue sauce. Hill had parked next to them. Gray got into Hill’s car, leaving Lafleur to sit in his car to wait until she came back. Lafleur drove around until Hill pulled next to his vehicle again, Gray got out of Hill’s car, and Gray got back into Lafleur’s car. Lafleur testified, “[Hill] drove off and we drove off.” Lafleur contended he did not know Gray was going to sell drugs to Hill and claimed innocence.
The contents of the' ziploc bag purchased that night were determined to be 2.56 grams of methamphetamine. Lafleur’s trial was held on March 10, 2004, at which time Hill and Lafleur testified as stated above. The events were also described by Investigator Watkins, such as the second phone call Hill made to Lafleur on the evening in question and what occurred at the Petro 2 station.
In addition to Lafleur’s testimony for the defense, Hill’s brother testified that he talked with Hill after Lafleur’s arrest and Hill stated she did not know why Lafleur was in jail. He claimed Hill said the “deal was done with [Gray].” This testimony was rebutted by Hill.
At the close of testimony, prior to the jury instructions conference, die trial court dismissed the possession of methamphetamine without a drug tax stamp and tire possession of drug paraphernalia charges. There was no request for an entrapment instruction. Lafleur’s closing argument set forth his theory of defense to be Hill’s lack of reliability and credibility and tire lack of any other evidence of Lafleur’s knowing involvement in the drug sale. In other words, he did not do it. The jury received instructions regarding informant testimony and an instruction regarding Lafleur’s guilt if they believed he had assisted or promoted Gray’s crime in selling Hill the drugs. The jury convicted Lafleur of the sale of methamphetamine and the unlawful use of a communication facility.
On March 11, 2004, Lafleur filed a motion to arrest judgment based upon the following charging document:
“Comes Now Ellen Mitchell, Saline County Attorney, for and on behalf of the State of Kansas, and gives the Court to understand and be informed that in Saline County, Kansas, on or about July 31, 2003, one SCOTT GENE LAFLEUR and AMBER NICOLE GRAY did then and there unlawfully, willfully, and feloniously sell a stimulant drug, to wit: methamphetamine.
K.S.A. 65-4161 (Sale of Methamphetamine)
Level 3D Felony (Sentence Range 14-51 months)”
Lafleur argued that the element of intent to sell methamphetamine was missing in the complaint, making the complaint fatally defective.
A hearing was held on the motion prior to Lafleur s sentencing. After argument, the trial court, citing K.S.A. 21-3201, concluded the State’s use of the word “willfully” was sufficient for the general intent crime of the sale of methamphetamine. All of Lafleur’s post-trial motions were denied. Based on his criminal history score of C, Lafleur was sentenced to 40 months for the primary crime of the sale of methamphetamine. Additionally, pursuant to K.S.A. 65-4141(c), he was sentenced to 8 months for a nondrug severity level 8, nonperson felony. The sentences were ordered to run concurrently.
On appeal, Lafleur argues there was a functional equivalent of a request for an entrapment instruction. Alternatively, he concedes the standard of review is whether the omission was clearly erroneous based on no request being made for the instruction.
“ Tt is well established that [an appellate] court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.’ [Citation omitted.]” State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002).
The statement Lafleur alleges was a “functional request” for an entrapment instruction was only a reiteration of the trial court’s question, apparently made at tire preliminary hearing, as to whether the State could charge someone with the unlawful use of a communication facility when the call was initiated by the State or the State’s agent. See K.S.A. 65-4141 (it is unlawful for any person to knowingly or intentionally use any communication facility to commit, cause, or facilitate a drug felony).
The word “entrapment” was not used during the instructions conference by defense counsel and no such instruction was proffered. ■
We must utilize the clearly erroneous standard of review. There is no record of the preliminaiy hearing in the record on appeal; furthermore, an instruction request should certainly be explicit enough to invoke an instruction or a discussion about an instruction. Here, it appears defense counsel brought up the trial court’s earlier statement in an attempt to dismiss the unlawful use of a communication facility charge, not to invoke an instruction being given.
More importantly, Lafleur’s defense was that he was not involved in the sale at all. An entrapment instruction would not have been congruent with this defense. “In a criminal action, atrial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence.” State v. Williams, 277 Kan. 338, 356, 85 P.3d 697 (2004).
“A defendant who refuses to admit any involvement in an incident out of which a criminal charge arises cannot use entrapment as a defense. A defendant who admits the acts charged by the state, but claims the acts fail to support a criminal charge, may raise entrapment as an additional defense. In situations where the defendant admits some involvement, but fails to admit all tire facts alleged by the state, [the defendant] may or may not be entitled to claim entrapment, depending on the degree of involvement [the defendant] admits. Admission of substantial involvement would tend to permit the defense, while slight and limited admission would tend to deny the defense.” State v. Einhorn, 213 Kan. 271, 273, 515 P.2d 1036 (1973).
The Einhom court noted that the defendant admitted possession of marijuana and his participation in acts leading up to the transfer of drugs. The court remanded that case for a new trial because the defendant was entitled to the instruction. 213 Kan. at 273-75. However, in this case, Lafleur denied any participation or knowledge of the drug transfer and did not ask for an instruction based upon entrapment. His defense was based upon his total lack of involvement in and knowledge of the drugs or the transaction between Hill and Gray. This jury received an informant instruction, which stated that the jury should consider with caution the testimony of an informant. This instruction was based upon Lafleur’s theory of defense, i.e., Hill was neither credible nor reliable. The trial court was correct in not giving an entrapment instruction.
Lafleur’s statement that he had an innocent conversation with Hill was not an admission of wrongdoing.
Lafleur also appears to argue a lack of sufficiency of evidence related to the unlawful use of a communication facility conviction. He alleges there was no evidence whatsoever that he was in the habit of arranging for illegal drug sales using a phone. However, Hill specifically testified that she knew Lafleurs cell phone number and that he spoke to her on the phone about selling the 8-ball of methamphetamine for $300. She also testified that a second call confirmed the time and location of the transfer of the drugs. K.S.A. 65-4141 does not require that a pattern or habit exist for the crime to be committed, nor does it express the need for the State to prove the defendant actually dialed the phone. The jury chose to believe Hill’s testimony over Lafleur’s and convicted him of the unlawful use of a communication facility based on Lafleur’s use of his cell phone for committing, causing, or facilitating a drug sale to Hill on July 31,2003. There was sufficient evidence to support that verdict.
Next, Lafleur contends the trial court erred in not finding the charging document for the sale-of methamphetamine fatally defective because of the omission of the words “or intentionally.”
The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). Because Lafleur filed a motion to arrest judgment within 10 days of his guilty verdict, this court reviews the charging document under the pre-Hall standard. See 277 Kan. at 661-62 (citing State v. Hall, 246 Kan. 728, 793 P.2d 737 [1990]).
Under the pre-Hall standard, the focus is on technical considerations or die technical compliance with the essential elements of the crime. “If the charging document does not set out the essential elements of the crime, it is fatally defective and the conviction must be reversed for lack of jurisdiction.” [Citation omitted.] 277 Kan. at 661-62.
K.S.A. 65-4161 states it is “unlawful for any person to sell, offer for sell, or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; dis pense or compound any opiates, opium or narcotic drugs, or any stimulant . . . (Emphasis added.)
The trial court relied on this language as well as the language of K.S.A. 21-3201(b), which states: “Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ ”
The trial court did not err in denying Lafleur’s motion to arrest judgment. The terms “willful” and “intentional” are synonymous. See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 181, 872 P.2d 252 (1994) (In common usage, the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional.”); MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202-03, 855 P.2d 77 (1993) (“Willful and intentional are synonymous.”). The complaint was not defective.
Finally, Lafleur argues K.S.A. 65-4127c should determine the severity level for the crime of unlawful use of a communication facility, rather than K.S.A. 65-4141. This would mean he would be guilty of a class A nonperson misdemeanor, as opposed to his being found guilty of a nondrug severity level 8, nonperson felony. His argument fails.
“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).
Lafleur notes that K.S.A. 65-4141 is part of the Uniform Controlled Substances Act, K.S.A. 65-4101 eí seq., and contends that it is, therefore, subject to the sentencing provisions of K.S.A. 65-4127c. K.S.A. 65-4127(c) states:
“Except as otherwise provided in K.S.A. 65-4127a and 65-4127b and K.S.A. 65-4160 through 65-4164 and amendments thereto, any person violating any of the provisions of the uniform controlled substances act shall be guilty of a class A nonperson misdemeanor. The criminal penalties prescribed for violations of the uniform controlled substances act shall not be applicable to violations of the rules and regulations adopted by the board pursuant thereto.”
As noted by Lafleur, K.S.A. 65-4141 is not among the enumerated statutes that are excepted from the general provisions of K.S.A. 65-4127c. However, K.S.A. 65-4141 was passed after the original K.S.A. 65-4127c and contains a provision specific to that section making it a nondrug severity level 8 nonperson felony.
We do not believe Lafleur successfully analogizes this case to State v. Layton, 276 Kan. 777, 80 P.3d 65 (2003). While the statute in question here is part of the Uniform Controlled Substances Act and is not excepted under the general provisions of K.S.A. 65-4127c, its specific penalty provision removes it from the general penalty section.
“General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]” In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999); State v. Luttig, 30 Kan. App. 2d 1125, 1132, 54 P.3d 974, rev. denied 275 Kan. 967 (2002).
It is clear that the intent of the legislature was to consider any violation of K.S.A. 65-4141 to be a nondrug severity level 8, nonperson felony. K.S.A. 65-4141(c) states: “Any person who violates this section shall be guilty of a nondrug severity level 8, nonperson felony.”
The trial court was correct.
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Denied.
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Denied.
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Denied.
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The opinion of the court was delivered by
BEIER, J.:
This is defendant Willie Smith-Parker s direct appeal from two prosecutions joined for a single jury trial. The first case arose from a burglary/homicide on the morning of June 13, 2009, and the second arose from a fatal shooting on the morning of June 19, 2009. Smith-Parker was convicted of first-degree premeditated murder in the death of Alfred Mack, second-degree intentional murder in the later death of Justin Letourneau, theft, and aggravated assault. The jury acquitted Smith-Parker of two aggravated burglary counts.
Smith-Parker raises 10 issues in this appeal: (1) whether the evidence of premeditation of Mack’s murder was sufficient; (2) whether aiding and abetting is an alternative means crime; (3) whether the two cases should have been consolidated for trial; (4) whether the district judge abused his discretion by excluding a statement made by Letourneau; (5) whether the mandatory wording of an instruction requires reversal for clear error; (6) whether the district judge erred by failing to tell jurors to begin their deliberations anew when an alternate juror was substituted; (7) cumulative error; (8) whether tire district judge abused his discretion by refusing to recall the jury; (9) whether the district judge violated Smith-Parker s rights under the Sixth and Fourteenth Amendments to the United States Constitution, as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by sentencing him to a harsher penalty based on his criminal history; and (10) whether the district judge violated Smith-Parker s Sixth and Fourteenth Amendment rights, as articulated in Apprendi, by sentencing Smith-Parker to the highest sentence in the range in the applicable Kansas Sentencing Guidelines Act presumptive grid box.
We conclude that four of Smith-Parker’s allegations of error have merit and that they cumulatively require reversal of all of his convictions, and we remand the case for further proceedings. Given this result, we need not reach either of his two sentencing issues; but we observe in passing that each has been finally resolved against him in our Kansas courts. See State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002) (rebanee on criminal history permissible); State v. Johnson, 286 Kan. 824, Syl. ¶ ¶ 5-6, 190 P.3d 207 (2008) (highest sentence in grid box permissible).
Factual and Procedural Background
Smith-Parker’s numerous appellate issues, including sufficiency of evidence to support his conviction for premeditated first-degree murder, require a recitation of factual and procedural background more lengthy and comprehensive than the norm.
Mack Death
In June 2009, Benjamin Friedman and his roommate lived in Apartment B at 1012 Johnstown Avenue. On the morning of June 13, Friedman’s alarm woke him, and he heard someone running down the stairs outside of his apartment. He also heard a loud noise, which he would later describe as similar to a car backfiring. Two other residents of nearby apartments also reported having heard a loud noise at about the same time, describing it as a “great big bang” or a gunshot.
After Friedman got out of bed, he went into the living room of his apartment and noticed that his television was missing. A Sony PlayStation and various movies and video games also were missing.
Friedman went outside and observed that one of the screens to a lower apartment had been removed. Friedman went back into the building and checked the downstairs apartments. He noticed splintering on the door of Apartment C. Friedman could hear a television inside the apartment, but nobody answered the door when he knocked on it.
Friedman then called 911.
When Officer Glen Soldán arrived at the apartments, he observed that the door to Apartment C “had been lacked open and it wasn’t quite shut.” When he knocked on the door it swung open, and Soldán could see “a large black male lying on his back, feet towards [the door], obviously not breathing.” The man was later identified as Mack.
Soldán entered the apartment to make sure that no one else was in it, and he noticed an empty .22 casing lying on the floor.
When investigators arrived, they found and photographed a partial footprint on a split-rail fencepost just below the deck to Friedman’s apartment. Later enhancement of the image would show that the word “Servus” was imprinted on the sole.
Ron Styles, an investigator, would later testify that it appeared Mack had been sitting in a chair watching television and, based on the angle the bullet entered his body, was in the process of standing up when he was shot. The blood splatter pattern in the apartment indicated that Mack probably lived 1 to 2 minutes before collapsing into the kitchen. According to Styles, it was likely Mack was shot from the dooiway of the apartment.
Dr. Altai Hossain conducted Mack’s autopsy, which determined that the cause of death was bleeding from a penetrating gunshot wound to the chest. Based on tire location of the gunshot wound and information provided by law enforcement, Hossain would testify at trial that Mack had been shot from more than 2 feet away.
Investigators did not have any immediate leads or suspects.
Letourneau’s Death
A little after 6 on tire morning of June 19, 2009, Darci Davis was standing outside the Salina Regional Health Center when she noticed a white four-door car “coming down the street towards the hospital from the right and it squealed into the parking lot across the street . . . and tiren it squealed around and . . . stopped right beside” her. The driver of the car, later identified as Smith-Parker, asked Davis for directions to the emergency room. Davis noticed that the car’s passenger, later identified as Letourneau, was leaning on the driver and had blood on him and that “there was blood on the window, . . . blood on the door, [and] just... a lot of blood.” Davis provided directions, and Smith-Parker drove off in the direction of the emergency room.
The first nurse to respond found Letourneau in the passenger seat of the car. His airway was “pretty much closed”; he was not responsive; he had vomit all over him; and appeared to have a head trauma. Another nurse would later testify that there was a “penetration wound to [the victim’s] right temple and there was blood and emesis on the patient and in the car and on us.” One of the nurses asked Smith-Parker who had shot the passenger. Smith-Parker replied: “I don’t know.”
A 911 call was placed from the emergency room of the hospital at 6:23 that morning to report a shooting victim.
Crystal Gile was the first law enforcement officer to arrive at the hospital. She found a white Chevy Cavalier parked under the awning of the emergency room. She pulled Smith-Parker aside, and she would testify at trial that Smith-Parker was veiy emotional during their conversation.
Smith-Parker identified Letourneau, and Gile asked, “What happened to Justin?” Smith-Parker responded, “I killed him.” Gile then asked Smith-Parker to explain what had happened. After initially saying that Letourneau had been “heatin’ his son momma,” Smith-Parker said, “Justin told me he was gonna kill me.” Smith-Parker then said that this had happened “on the road.” After mentioning a gun, Gile asked Smith-Parker if there was a gun in the car. Smith-Parker did not know where the gun was. Gile then took Smith-Parker into custody and transported him to the Salina Police Department.
Investigators determined that the Cavalier Smith-Parker had driven to the hospital was registered to Tiffany Wellman and Victor Gonzales, and they obtained a search warrant for Wellman’s home. During the search, officers found a shoebox on the top shelf of a hallway closet. In it was a cloth, zippered gun case, and inside it was a box of Winchester .38 Special ammunition, some loose Super X .22 shells, and a sock that had more shells inside of it. Investigators also found several DVDs and a backpack, which contained a PlayStation and video cords. A check of the serial number from the PlayStation revealed that it had been reported stolen from Friedman’s apartment.
Clayton Hardaway was dispatched to do a welfare check at Le-toumeau’s home. Letourneau’s stepbrother, Travis Graham, was inside and Kendra Yanik-Ducharme was outside; a baby was sleep ing on the floor. Yanik-Ducharme told Hardaway that Letoumeau was her boyfriend. Hardaway asked Yanik-Ducharme when she had last seen Letourneau, and Yanik-Ducharme said she had not seen him since the previous evening. Hardaway informed Yanik-Ducharme that Letourneau had been shot.
While investigators were at Letourneau’s, Yanik-Ducharme consented to a search of her car. On the floor of the passenger side of the car, investigators found a gun, which Yanik-Ducharme identified as belonging to Letoumeau. The gun was a .38 Colt Cobra pistol.
Letourneau was flown to a Wichita hospital, where the decision was made on June 20 to remove him from life support.
Investigators impounded the Cavalier and searched it. They found a white cotton glove with a Dillon’s sack inside it under the driver’s seat. Inside the sack was .38 ammunition. A Super X .22 cartridge case was found on tire right front floor.
The gun used to shoot Letoumeau was never recovered.
Dr. Ronald F. Distefano performed Letourneau’s autopsy. Dis-tefano concluded that Letourneau had a single gunshot wound on the right side of his head. Distefano later testified at trial that, based on “stippling” of the skin around the wound, the gun was “a few inches up to possibly a foot” from Letourneau when fired. The direction of the bullet “was from right to left, somewhat from front to back, and slightly downward.” At trial, Distefano also testified that, in his opinion, the death was a homicide and not a suicide or accident. But he admitted that he could not malee this determination from looking at the body alone. The “findings of the wound show[ed] closeness!, but] they do not show whether [Letoumeau] shot himself or whether someone else did.” Distefano relied on information provided by the police in reaching his conclusion that the death was a homicide. According to Distefano, based on the information he had received, everything pointed toward homicide and nothing suggested suicide.
Ballistics testing conducted on the .22 casing recovered from Mack’s apartment and the Super X .22 casing recovered from the floor of the Cavalier had been ejected from the same gun.
On June 23, 2009, the State filed a Complaint/Information in case No. 09 CR 633, charging Smith-Parker with three counts: aggravated assault of Letourneau, second-degree intentional murder of Letourneau, and criminal possession of a firearm.
Approximately 4 months later, the State filed a Complaint/Information in case No. 09 CR 1047, charging Smitli-Parlcer with five counts: first-degree premeditated murder and first-degree felony murder in the death of Mack, two counts of aggravated burglary of Mack’s and Friedman’s apartments, and one count of theft of items from Friedman’s apartment.
Pretrial Motions
The State requested the two cases be tried together, and the district judge initially set the two cases for a joint trial. Smith-Parker then filed a motion to sever. At a hearing on the motion, the district judge concluded that tire two cases could not be tried together, noting that the only evidence tying the crimes together was the ballistics testing on the .22 casings.
When the State filed a motion to reconsider the severance, the district judge reversed his previous ruling and allowed the cases to be consolidated. He stated:
“The court is struck by the fact that all of the individuals in both of these cases are well acquainted to each other, their activities, their behaviors, their families, their homes, their connections, their history of sharing experiences together, including the serving of time together, are so inextricablfy] tied to each other the testimony, quite frankly, is clear that these individuals considered themselves to be brothers, not just friends. They were so close to each other that they viewed each other as relatives, not as just simply acquaintances or people who might have grown to know each other over some period of time.
“They shared common concerns about family members, about children, about actions toward family members, particularly the wife or significant other of Mr. Letourneau concerns raised by Mr. [Smith-Parker], they had their disagreements, they had the common theme of being involved apparently in the allegations and concerns being raised on activity involving residential burglaries and thefts, they had the commonality of the issues of perhaps drug involvements in these matters.
“[B]ut when you look at the totality of the information that has been presented by the State, recognizing that [its] burden remains beyond a reasonable doubt to tie this together and present it coherently to a jury, which is a different standard, this court is faced with the reality that we do have the connection in these matters, are they same or similar in character.
“We have a death of two individuals, we have burglaries, we have common communication between the parties in this matter discussing that particular activity, discussing the concerns about the character or the person of Mr. Mack discussing Mr. Letourneau, the same act or transaction it is difficult for the court to separate this particular scenario into any one particular act or transaction when you look at this in the sequence of events as presented by investigation, it flows, it flows from one party to another party to the same event to the same house, to the same persons, to the same activities, in that extent it does have the same feel of tire same act or transaction.
“Are there two or more acts or transactions that are connected together? When search warrants are executed and suddenly we find stolen property in the residence of someone who is closely related to the individuals charged in this matter. We find that a weapon is located in the same location. We find again that the ballistic matches to the death of both parties.
“There seems to be no significant interruption in the behavior and actions on the part of these individuals throughout tírese transactions which lead to the death of both individuals and the timeline is so close together within a week we have two individuals who have died as a result of fatal gunshots. Looking at all these cases as set forth and the State’s argument that they would be subjected to double jeopardy and the issue of compulsory joinder and the issue of 60-455, quite frankly, and if the State were to present these in two separate proceedings, quite frankly, it may be impossible if not impractical for them to proceed in both cases.”
In a journal entry summarizing the hearing, the district judge stated:
“After hearing arguments of counsel, the Court finds that pursuant to K.S.A. 22-3203, tire above-captioned cases should be tried together. The Court finds that alleged in offenses in each case are the same general character, require the same mode of trial and the same land of evidence, and occurred in the same jurisdiction within a short period of time. The Court further finds that the above-captioned cases involve offenses that are the same or similar character or part of a common scheme or plan.”
Voir Dire
During voir dire, the district judge asked members of the venire if anyone had any hardships that needed to be discussed with the court in chambers. At this point, juror N.B. said, “It’s not a hardship[. I]t’s just English is not my first language.”
While in chambers, N.B. disclosed that he was a librarian at the Salina Public Library and that he had a master’s degree in library science from Emporia State University. When asked about his language skills N.B. stated, “I have no problem with communicating with people.” But he said he sometimes had trouble following what was being said on television shows, such as CSI. N.B. said he might have to ask people to repeat what had been said, and he reiterated that he did “know the language[;] I read books.”
After further discussion, tire district judge stated that N.B. was qualified to serve on Smith-Parker’s jury. Before N.B. left chambers, the district judge asked N.B. if he would have any problems inquiring if something was said by the court or a witness that he may have misunderstood. N.B. replied that he did not have any problem asking other people if he did not understand something.
Trial
At trial, Friedman testified that he knew Graham, Smith-Parker’s stepbrother that officers had found sleeping on the couch at Yanik-Ducharme’s home the morning of Letoumeau’s shooting. According to Friedman, Graham had been in his apartment on multiple occasions.
Roommates Nathanial Johnson and Donyell Smith lived in the apartment below Friedman’s. Both Johnson and Smith testified that they had seen Thomas Jenkins, a friend of both Smith-Parker and Letoumeau, at the apartment complex on the morning of the Johnstown apartments crimes.
Johnson testified that he had seen a person he thought was Thomas on the sidewalk outside of the apartment complex. Johnson knew Thomas because the two had gone to school together. Johnson called out to Thomas and briefly spoke to him. Johnson then went outside to speak with him. After the conversation, Thomas walked away toward the complex’ carport.
Smith testified that she saw Thomas as she was going downstairs to the apartment she shared with Johnson. Smith also knew Thomas from school; she said “hi” to him and then continued to the apartment and went to bed. Smith testified that she saw two men with Thomas, one white and one black. Letourneau was white, and Smith-Parker is black.
Kendra Jenkins, Thomas’ wife, testified that she came home at approximately 2 a.m. on the night of the Johnstown apartment crimes. She said Thomas was the only one at her home when she arrived, even though she had earlier told investigators that she saw Smith-Parker and Letourneau with Thomas that night. Kendra also testified that she left her home again that night when her son’s father picked her up to retrieve her car. She did not return home until approximately 6:30 a.m. Both Thomas and Smith-Parker were at die home when she returned.
Kendra also testified that Thomas took her somewhere in the country east of Salina a couple of days after the Johnstown apartment burglaries. Thomas had taken a pair of rubber boots with him and he burned them. When Kendra was shown a photograph of a particular brand of boots, she identified die boots as the type Thomas had burned. The brand name of the boots was “Servus.”
Wellman testified at trial that Smidi-Parker was staying at her home in June 2009. Approximately 1 week before Letourneau’s death, Wellman testified, Smith-Parker brought a gun into her home. She recalled waking up one morning about that time and seeing Letourneau, Smith-Parker, and an unidentified third man in die living room of her home. Wellman testified that either that day or in die next couple of days several items started showing up: a television, some movies, and a PlayStation.
Yanik-Ducharme testified tiiat she saw Smith-Parker and Le-tourneau on the morning of the Johnstown apartment crimes. According to her, Letourneau woke her up that morning when he and Smith-Parker came to her home. Although she wanted to go back to sleep, Letourneau wanted to show her something. When she went downstairs, she saw a big fiat-screen television. She also saw a PlayStation. The two items stayed in her home only for a couple of days before Letourneau loaded them into her car, and he and Smith-Parker left together with them.
According to telephone records admitted into evidence, Thomas, Graham, Letourneau, and Smith-Parker had all been communicating with each other by phone in the early hours on the morning of the Johnstown apartment crimes. The last call among members of the group occurred at 3:56 a.m.
Xavier Matthews, a close friend of Letourneau, testified that Letourneau had told Matthews that he had robbed Mack. According to Matthews, Mack sold marijuana. Matthews testified that when “they” robbed Mack, Letourneau took a safe, and Matthews believed the safe contained a large amount of marijuana. According to Matthews, Letourneau had told him that they also had taken a gun from Mack.
According to trial testimony, the chain of events leading up to Letourneau’s death began the night before he was shot. Graham, Letourneau, and Smith-Parker attended a rap contest at a club in Salina on the night of June 18, 2009, and ¿en went to a party Matthews was hosting.
Matthews, as well as other witnesses, testified that both Smith-Parker and Letourneau attended his party. Matthews believed that both Letourneau and Smith-Parker were armed ¿at night. According to Matthews, Letourneau had shown him a gun, which Matthews ¿ought was a .357. Although Matthews did not actually see Smith-Parker with a gun, he believed that he was armed because “when he was dancing around my house he had a bulge in his pants.” Matthews testified that he told both men to take the guns out to their car, and both complied with his request.
Matthews also testified that he had previously seen the two carrying guns at his house on “multiple occasions.” He had seen them with two different weapons—one he believed to be a .22 and the other a .357. Matthews also believed that Letourneau and Smith-Parker regularly traded the two guns between themselves.
Yanik-Ducharme testified that she and Letourneau got into an argument while at Matthews’ party. She then left. When Yanik-Ducharme arrived home, Smith-Parker, Graham, and Letourneau were there waiting for her to unlock the door. She unlocked the door, and Graham and Letourneau went inside.
Yanik-Ducharme then went to her neighbor’s for a moment, before returning home. Once home, she and Letourneau argued again on their front porch; at some point during the argument, Letourneau hit her. Yanik-Ducharme walked back to the neigh bor’s, passing Smith-Parker, who was sitting in his car, in the process. Yanik-Ducharme told Smith-Parker what had happened.
Smith-Parker then got out of his car and began arguing with Letourneau. The argument ended with Smith-Parker getting into his car and leaving. Yanik-Ducharme and Letourneau again began to argue, and then Smith-Parker returned.
Smidi-Parker and Letourneau yelled at each other, and, according to Yanik-Ducharme, each had a gun. Yanik-Ducharme approached Smith-Parker and convinced him to leave. She heard Smith-Parker ask Letourneau, “ ‘Why he would put his hands on his wife’ ” and “ ‘Why [he would] want to treat her like that[. A]ll she does is try to provide a home for you and these kids.’ ”
Smith-Parker left again, and Letourneau asked Yanik-Ducharme to drive him to Wellman’s home, where Smith-Parker was staying. Yanik-Ducharme did so. She testified that it was probably close to 6 a.m. by this point.
When the pair reached Wellman’s, Yanik-Ducharme parked a house or two down the street. Letourneau got out and walked up to Wellman’s door, while Yanik-Ducharme waited in the car.
Smith-Parker answered the door, and he and Letourneau again began to argue. Duxing this phase of the argument, Yanik-Duc-harme saw Smith-Parker throw a gun on the ground before he went back inside. Letourneau then walked back to the car.
Letourneau opened the door of the car but did not get in. According to investigators, Yanik-Ducharme told them that she heard Smith-Parker say, “ ‘You really want to take it there?’ ” and that Letourneau should “ ‘[g]o and get his guns.’ ” Yanik-Ducharme said Letourneau did not get anything out of the car.
Smith-Parker came back out of the house and got in his car. Letourneau tiren left Yanilc-Ducharme’s car and walked to Smith-Parker’s car and got in. The two then di-ove off. Yanik-Ducharme tried to follow but eventually lost them.
During cross-examination at trial, Yanik-Ducharme was asked whether Letoumeau’s behavior had changed during the week before his death. She said he “just wasn’t acting like hi[m]self at all or he was, I don’t know, he just, his mood was different and he was real secretive and didn’t really spend much time with me and the kids anymore]! H]e just . . . seemed like a different person.” Yanik-Ducharme also was asked about statements Letourneau made to her. Before she could answer, the State lodged a hearsay objection.
The district judge dismissed the juiy before proceeding. Defense counsel then read Yanik-Ducharme’s responses to a similar line of questioning during Smith-Parker’s preliminary hearing:
“ ‘Q. When he said he was leaving what did that mean to you, just getting away because [of] the argument or what?
“ ‘A. He said that me and the kids well never—well never have to see him again.
“ ‘Q. Okay and did he seem like he was elated about the fact or sad or upset or what if you observed it?
“ ‘A. He seemed like upset really weird he wasn’t acting like himself.’ ”
The State argued that admission of the “never have to see him again” comment would mean that the State could admit other hearsay, specifically, Letoumeau’s statement to Yanik-Ducharme that Smith-Parker had killed Mack. According to the State, it would not be “fair that certain portions of hearsay from Justin Letourneau who is not here to confront those statements would come in.”
As the discussion continued, the district judge summarized the State’s argument as a “Crawford issue basically.” See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (Confrontation Clause issue). The State responded, “Right, it doesn’t matter if it’s a sworn statement, hearsay is hearsay, we still don’t have an opportunity to cross examine him, we don’t have an opportunity to even confront him about that.” Defense counsel argued that the statement Smith-Parker sought to admit was “not going to the truth of the matter, it’s going to basically what his state of mind was but it is a sworn statement that she testified to previously. . . . And now she says that he didn’t say anything and she just went home.” This colloquy followed:
“THE COURT: Well, the major issue we have is we have no ability under Crawford for confrontation.
“[THE STATE]: Right, right, either party does.
“THE COURT: It’s a Crawford question is what we are dealing with.
“THE COURT: Versus a hearsay per s[e].
“[THE STATE]: Unless diere is some exception which I’m not sure what diat would be.
“THE COURT: Well Crawford has a number of exceptions but not in this particular [situation].
“THE COURT: The objection will be sustained. The court will permit you however to inquire of the witness if her statement on this date would be different widiout saying Mr. Letourneau said, i.e., she can certainly be questioned about whether he made a statement to her. Today she says he doesn’t make a statement.”
Wellman also testified about the early morning of Letourneau’s shooting. She said that Smith-Parker lay in bed when he returned from Letourneau s residence. At some point, Wellman saw a gun in his possession. Smith-Parker told Wellman that she needed to pack the kids up and leave for a few days because he and Letour-neau were arguing. When Wellman later heard a knock on her door, she took her children into a back bedroom and shut the door.
Smith-Parker also testified at trial. He told the jury that he and Letourneau were best friends, like brothers to each other.
Smith-Parker also testified to the events surrounding Letour-neau’s shooting. He said that he, Letourneau, and Graham had to wait for Yanik-Ducharme to arrive at the home she shared with Letourneau after Matthews’ party. When Yanik-Ducharme arrived, Letourneau and Graham got out of Smith-Parker’s car, while Smith-Parker remained in it. As he waited there, Yanik-Ducharme walked by and told him that “ ‘Justin had pulled a gun out.’ ”
Smith-Parker said he then got out of the car and walked up to Letoumeau’s apartment. When he got to the door, he could see Letourneau coming up out of the basement. According to Smith-Parker, he confronted Letourneau and asked him why he was pulling a gun on his wife. Yanik-Ducharme then came up onto the porch where the two men were standing, and, according to Smith-Parker, Letourneau “reached around and slapped her upside the head and [Smith-Parker] grabbed [Letourneau’s] arms and told him to ‘[s]top beating on his wife.’ ” Then Letourneau jerked back away from Smith-Parker and went back toward the basement. This “concerned [Smith-Parlcer] a little bit” because Letourneau “normally kept a firearm” downstairs. Smith-Parker then left.
During cross-examination, Smith-Parker admitted that he then went home to get his gun. He also admitted that the gun he retrieved was a .22. At other times, he said, he had been in possession of both a .22 and a .38.
Smith-Parker testified that he eventually returned to Letour-neau’s apartment complex. When he did, Letourneau was sitting in Yanik-Ducharme’s car and Yanik-Ducharme was standing by it. Smith-Parker said he got out of his car and Yanik-Ducharme came up to talk to him. At some point, Smith-Parker began “hollering at [Letourneau,] asking him, Why he was beating on his wife and why he wanted to treat her like that.’ ” While Smith-Parker was yelling at Letourneau, Yanik-Ducharme was trying to get Smith-Parker to get into his car and leave. Eventually, Yanik-Ducharme convinced him that she would be okay.
Smith-Parker testified that when he got home, he locked the door and went into the bedroom, where he sat and talked with Wellman. According to Smith-Parker, he told her that Letourneau had been “ ‘beatin[g] on his baby mom’ ” and that, until he stopped, she should not “ ‘let him back in the house.’ ” During this time, Smith-Parker told Wellman that she needed to leave with the children for a couple of days and not to answer if anyone came to tire door.
When Letourneau’s knock came, Smith-Parker went to tire door and took his gun with him. When he stepped outside after seeing Letourneau through the peephole, the two men began arguing again. Smith-Parker testified that he told Letourneau: “ ‘You know I love you more than I love myself ” and that he threw his gun on the ground after he realized Letourneau did not have one with him. Smith-Parker then went back into the house to look for his keys, as Letourneau walked to Yanik-Ducharme’s car.
Once Smith-Parker found his keys, he testified, he went back outside and got into Iris car. Letourneau walked up and got into tire car with him, which surprised Smith-Parker because he thought Letourneau was leaving with Yanik-Ducharme. Smith-Parker again had the .22 with him, because he had picked it up from the ground. He placed it by tire gear shift between the two front seats. During cross-examination, Smith-Parker was asked why he would put the gun within reach of Letourneau if he was concerned about his potential for violence. Smitii-Parker said that he did not know Letourneau would be getting into die car.
Smith-Parker then began driving; Letourneau directed him where to drive. According to Smith-Parker, he and Letourneau ended up in the country outside of Salina.
Smith-Parker testified that he parked the car and started talking with Letourneau. According to Smitii-Parker, he again told Le-tourneau, “ ‘You know you got to quit beatin[g] on your baby mom.’ ” During this conversation, according to Smitii-Parker, Le-tourneau began playing with the gun, at first, just pointing it out tiie window of the car.
But then Letourneau made a comment that prompted Smith-Parker to reply: “ ‘You talking stupid right now.’ ” Although Smith-Parker did not testify to the substance of Letourneau’s comment, Smith-Parker’s parole supervisor did. She said Smith-Parker had told her while he was awaiting trial that Letourneau had begun “talking about shooting himself like someone named Ronnie did.” Smith-Parker testified that the gun discharged shortly after his “talking stupid” statement to Letourneau:
“[Letourneau] just had like a little smile after he made another comment to me had like a little smile like and then when he—when he pointed I told him, ‘Don’t point the gun,’. . . .
“. . . I told him to, ‘Stop fucking pointing the gun at your head,’ and he didn’t do it and then I told him again and then from that point I went—I went by the thing and I went like this to tiy to yank the gun down and it went off.”
According to Smith-Parker, he was standing outside of the car when the gun discharged. Letourneau was sitting in the front seat, and Smith-Parker had reached into the window.
Smith-Parker then described the aftermath: “[Wjhen the gun went off, you know, he sat up and then I seen his eyes they crossed and then I seen blood come out his head and so then I ran around beside tire car and jumped in the driver’s seat and started going toward the hospital.”
On the ride to the hospital, Smith-Parker testified, Letoumeau was vomiting and kept falling over toward Smith-Parker. Smith-Parker said he was driving very fast and flashing his lights to alert someone that'he needed help. Meanwhile, Letourneau was moaning and rubbing his chest. Once at the hospital, Smith-Parker ran inside, grabbed a wheelchair, and told the desk clerk his “bro” had been shot.
When asked whether he felt responsible for what had happened, Smith-Parker said yes.
“Yeah, I felt responsible for what happened because, you know, it’s like if I never had the gun in the car, you know, then—you know then the accident probably wouldn’t have happened in the first place, this wouldn’t have took place, you know, if I wouldn’t have had the gun in the car, but that’s why—that’s why I felt responsible for what happened to him. See what I’m saying, cause this is my best friend and we had this stupid argument and then here we are and then I lose him almost like this—I lose him like this so, yeah I feel responsible for what happened.”
Smith-Parker said that he did not consider Letoumeau s death a suicide and that Letoumeau was not suicidal. He also denied that he intentionally killed his friend.
During cross-examination, Smith-Parker was confronted with the statements he had made to Gile. When asked why he told her that he had killed Letoumeau, Smith-Parker repeated that he felt responsible for Letourneau’s death. He also said that he had told Gile he shot Letourneau because of Letourneau’s violence toward Yanik-Ducharme and because he was trying to explain what had happened. He also responded to a question on why he changed his account of the shooting from one attributing it to Letoumeau’s violence against Yanik-Du,charme to one attributing it to Letour-neau threatening Smith-Parker. Smith-Parker said he did not remember doing so.
Smith-Parker also was asked why he stopped on the way to the hospital to dispose of the gun, if his sole concern was getting Le-toumeau speedy medical attention. Smith-Parker said that he had not stopped, instead throwing the gun out the window while he was driving.
In addition to these questions, the State attempted to get Smith-Parker to admit that Letoumeau had actually been shot outside of Wellman’s apartment. But Smith-Parker insisted that the events had occurred as he described during his direct testimony.
At the conclusion of evidence, tire jury was given an instruction for first-degree murder in the death of Mack. The written instruction included the following:
“If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.
“If you have a reasonable doubt as to the guilt of the defendant as to the crime of murder in the first degree, then you must consider whether tire defendant is guilty of murder in the second degree.” (Emphasis added.)
Another jury instruction defined reasonable doubt.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of tire claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to tire truth of each of the claims required to be proved by the State, you should find tire defendant guilty.”
The juiy also was provided with the following jury 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 tire extent of tire defendant’s participation, if any, in the actual commission of tire crime.”
All of the instructions also were read aloud to the members of the jury in open court.
Within 90 minutes of beginning deliberations, the jury sent four communications to the district judge in rapid succession. The fourth communication stated: “We have an issue with one (male) juror and his ability to understand the instruction presented. Can we o[r t]he court remove him?”
The district judge and counsel believed that the juror in question was N.B., who had raised a concern about English being his second language during voir dire. The district judge and counsel for both sides agreed that it would be best to replace a juror earlier rather than later in deliberations, but they first confirmed with tire presiding juror that the issue arose as to N.B. After the presiding juror confirmed to the district judge and both parties that they had correctly identified thé person that other jurors had inquired about, the district judge stated:
“Alright, counsel have believed that to be the circumstances and they have stipulated that the Court may remove this individual. At this point die procedure will be that we will call the panel back into the jury box, we will [bring alternate juror V.W.] into the gallery area, I will excuse [N.B.] . . ., we will not permit any discussion or comments to be made and then we will have [V.W.] take his seat and you may return back to deliberations at that point.”
The jury then returned to the courtroom. The district judge read the jury question aloud and confirmed with the presiding juror that he had read it correctly. The presiding juror was then asked to identify tire juror in question. The presiding juror identified N.B.
“THE COURT: Okay, the Court has had the opportunity to confer with counsel in this matter and with the Defendant present in chambers in regard to the question that has been propounded by the jury in this matter and presented by the presiding juror in this case.
“It is not uncommon and it is unfortunate that there are occasions when the information and material that are presented to jurors are such that it’s not a good fit for a particular individual on the jury.
“We note from the Voir Dire responses in this matter that that would have been an indication given to us by the individual named in this case.”
“And, ladies and gentlemen, we now have the full compl[e]ment of 12 jurors and you are now instructed to return to the jury room and continue your deliberations and include [V.W.] into your deliberation process.
“And again you may take as much time as you need so that [V.W.] may be a participant in this matter.”
Posttrial Proceedings
N.B. was dismissed from Smith-Parker s jury on October 29, 2010, the same day as the verdicts were returned. The following day, N.B. wrote a letter to the district judge in which he said that he was the only juror who did not believe Smith-Parker was guilty of first-degree murder of Mack at the beginning of deliberations and that he also believed Smith-Parker was guilty only of invol- untaiy manslaughter of Letoumeau. According to N.B., the presiding juror used language difficulties as a pretext to remove him from the jury.
On November 2, the district judge responded to N.B/s letter with a letter explaining that he could not provide legal advice or comment on pending or impending proceedings and that N.B/s letter would be forwarded to counsel.
After receiving a copy of N.B/s letter, defense counsel moved for new trial based on juiy misconduct and false representation to the court; counsel also moved to recall the jury.
At a hearing on the defense motions, the district judge admitted N.B/s letter and an affidavit from the presiding juror into evidence. He advised Smith-Parker that no additional testimony would be admitted, and Smith-Parker s counsel voiced no further objection to this procedure.
The presiding juror s affidavit stated that N.B/s removal had nothing to do with N.B/s opinions on guilt or innocence. It also said that the other jurors were having difficulty explaining definitions of words to N.B. and that the jury started deliberations over, once N.B. was removed and the alternate juror seated.
After reviewing the evidence, the district judge noted that “[t]he clear questions by this jury begin with language issues.” He ruled:
“This is not an issue of [N.B.’s] opinion or his belief or his determination of how he would vote in the case; this is a clear issue of inability to serve as a juror, based upon a language barrier in this matter. It is not a matter of several hours of deliberation, but several hours of deliberation only began after the alternate juror was seated and they again began the deliberation anew as stated in the affidavit of the presiding juror in this matter.
“[T]he court’s removal of [N.B.] had nothing to do with his opinion, the court, nor counsel, nor defense, were made aware of anything of this nature until he filed his letter and affidavit after the fact. . . .
“The court found only that N.B. would be unable to perform his duties and counsel acknowledged, counsel have waived that argument by the stipulation that he should be removed and the court acquiesced in that stipulation and so removed [N.B.] for cause in this matter.
“The court would find on that basis that the Motion for New Trial on the basis of juror misconduct is simply not supported by the evidence as presented, the affidavits that are of the record in this matter, the court finds that there was good cause shown in the record to replace [N.B.] and there is no prejudice to tire defendant in that the defendant had time to visit with counsel, outside the hearing of court and the State and in response to that stipulated on the record he as well as his attorney would ask that this juror be removed and stipulated [to] that removal along with the State in this matter.”
Discussion
Sufficiency of Evidence on Premeditated First-Degree Murder
Smith-Parker argues that the State’s evidence of premeditation in the Mack murder was insufficient, regardless of whether he was convicted as a principal or an aider and abettor.
Our 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).
We begin with the proposition that “premeditation, like other elements, can be proven by circumstantial evidence.” State v. Hollister, 300 Kan. 458, 470, 329 P.3d 1220 (2014). This court has looked at five factors to evaluate circumstantial proof of premeditation: “(1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” 300 Kan. at 470. Not all factors must be present, State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013), and, in some cases, one factor, standing alone, maybe sufficient, State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008). But premeditation cannot be inferred from the use of a deadly weapon alone. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
The majority of our cases dealing with sufficiency of the evidence with respect to premeditation have involved strong evidence to support the defendant’s personal performance of the actus reus of the crime. See Cosby, 293 Kan. at 134 (eyewitnesses saw defendant shoot victim); State v. Scaife, 286 Kan. 614, 616, 186 P.3d 755 (2008) (eyewitnesses saw defendant shoot victims); Cook, 286 Kan. at 1099 (defendant did not dispute he had shot, lulled victim); State v. Morton, 277 Kan. 575, 582, 86 P.3d 535 (2004) (defendant admitted shooting victim); State v. Scott, 271 Kan. 103, 106, 21 P.3d 516 (defendant admitted to physical altercation with victim), cert. denied 534 U.S. 1047 (2001); State v. Cravatt, 267 Kan. 314, 319, 979 P.2d 679 (1999) (eyewitness testified defendant shot victim).
In this case, the identity evidence on who fired the .22 that killed Mack is considerably less strong. In addition, only two factors on our list of those tending to show premeditation are present. A gun is unquestionably a deadly weapon. And the forensic evidence is certainly capable of supporting a reasonable inference that Mack’s assailant was not provoked: There was a forced entry through Mack’s front door; the shot was likely fired from the doorway; Mack was seated or possibly in the process of standing up; and there was no evidence of a physical altercation or struggle.
The State’s evidence that Smith-Parker participated in the burglaries and the murder of Mack included: Johnson’s testimony that he had seen Thomas Jenkins at Mack’s apartment complex on the morning of tire Johnstown apartments crimes, Smith’s testimony that she had seen Thomas Jenkins at the complex that morning and that he was with two other men, whose descriptions were consistent with Smith-Parker and Letourneau; Kendra Jenkins’ testimony that she had seen her husband with Smith-Parker and Letourneau on the morning Mack was killed; Yanik-Ducharme’s testimony that Smith-Parker and Letourneau brought a big screen television and a PlayStation into her home the same morning; Wellman’s testimony that Smith-Parker and Letourneau brought DVDs, a PlayStation, and a television into her home about the time of Mack’s shooting; forensic evidence of a shoeprint at the apartment complex with the word “Servus” imprinted on it; Kendra Jenkins’ testimony that she accompanied her husband when he destroyed a pair of Servus boots; Matthews’ testimony that “they,” meaning Letourneau and at least one other person, had robbed Mack of a safe, that Mack sold marijuana, and that Letourneau had been in possession of marijuana after Mack’s murder; forensic evidence that the same gun had been used in the deaths of Mack and Le-tourneau; witnesses’ testimony that Smith-Parlcer had possessed a gun of the same type on the night of Letourneau’s death that was of tire type used in Mack’s murder.
Given all of this interlocking evidence, we conclude that Smith-Parker’s jury could draw a reasonable inference that he was guilty of first-degree premeditated murder of Mack, at least as an aider and abettor. To establish guilt on the basis of aiding and abetting, see K.S.A. 21-3205, the State was required to show that Smith-Parker knowingly associated with the unlawful venture and participated “in such a way as to indicate that he facilitated the success of the venture.” State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012) (quoting State v. Baker, 287 Kan. 345, 366, 197 P.3d 421 [2008]). The State amassed and presented sufficient circumstantial proof that the killing of Mack was premeditated and that Smith-Parker participated “in such a way as to indicate that he facilitated the success of the venture.” See Robinson, 293 Kan. at 1038. Matthews’ testimony, in particular, when combined with the forensic evidence of the shooter’s and Mack’s positions in the room when Mack was shot, could lead to the inference that those who committed the crime entered the apartment with the intention of killing Mack or, at a minimum, leaving no witnesses.
Our result is reinforced by our decisions in at least two prior cases. In State v. Hoge, 276 Kan. 801, 806, 80 P.3d 52 (2003), we ruled that evidence of the number and location of shots fired in the victim’s bedroom, coupled with the presence of the target of the robbery, led to an inference the perpetrators broke into the victim’s house for the purpose of killing him or preventing him from being a witness against them. In the more recent State v. McBroom, 299 Kan. 731, 754-59, 325 P.3d 1174 (2014), we ruled that sufficient evidence placed the defendant at the scene of a homicide because the defendant admitted to being with his accomplice; witnesses testified to seeing a car similar to the accomplice’s car in the vicinity of the crime scene at the relevant time; and the accomplice’s DNA was found on a cigarette butt inside the victim’s home.
Aiding and Abetting
Smith-Parker next argues that the instruction to the juiy on aiding and abetting created alternative means of aiding and abetting.
We recently noted that such an argument raised “an interesting theoretical question,” but declined to address the issue because the instruction at issue addressed only aiding, not abetting. State v. Brown, 299 Kan. 1021, 1032-33, 327 P.3d 1002 (2014). Interesting theoretical question or not, we also recently have ruled that acting as a principal and acting as an aider and abettor do not constitute alternative means of committing first-degree murder. State v. Betancourt, 299 Kan. 131, 137-41, 322 P.3d 353 (2014). The aiding and abetting statute outlines the proper assignment of criminal responsibility; it does not create distinct elements of the crimes to which it is applied. 299 Kan. at 139; see K.S.A. 21-3205. The rationale of Betancourt is sound, and it dictates that this issue is without merit.
Consolidation
We review a district judge’s decision to consolidate multiple cases in three steps; each step requires us to apply a different standard of review:
“First, the court considers whether K.S.A. 22-3203 permitted consolidation. Under that statute, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) spells out the three conditions permitting the joining of multiple crimes in a single complaint. Whether one of the conditions is satisfied is a fact-specific inquiry, and the appellate court reviews the district court’s factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. Second, because K.S.A. 22-3202 provides that charges “may” be joined, a district court retains discretion to deny a request to consolidate even if a statutory condition is met. This decision is reviewed for an abuse of discretion. Finally, if an error occurred in the preceding steps, the appellate court considers whether die error resulted in prejudice, i.e., whether it affected a party’s substantial rights.” State v. Hurd, 298 Kan. 555, Syl. ¶ 1, 316 P.3d 696 (2013).
K.S.A. 22-3202(1) permits crimes to be charged in one complaint—and, thus, under K.S.A. 22-3203, permits consolidation of complaints—when “the crimes charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” The district judge’s oral statements and journal entry indicate he concluded that each of the three statutory conditions was met.
His articulated factual findings can be summarized in the following list: Smith-Parker and Letourneau had a close relationship, close to the point of considering themselves brothers, and they had common concerns about family members; evidence would support tire involvement of both Smith-Parker and Letourneau in the burglaries at the apartment complex; both cases ended in the death of an individual; the events surrounding the first crime flowed into the events surrounding the other crime with “no significant interruption in the behavior and actions” of the involved individuals; law enforcement’s execution of a search warrant related to Le-toumeau’s death led to the discovery of items stolen during tire burglaries; ballistics evidence demonstrated the same gun was used in each killing; tire same police officers and lay witnesses would testify in each case; and the compulsory joinder rule could hamper the prosecution’s ability to pursue tire second case after the first was tried.
Neither party challenges tire existence of substantial competent evidence to support each of these findings. Instead, on the first step of the analysis outlined above, each party focuses on whether the findings satisfied one of the conditions precedent in K.S.A. 22-3202(1) as a matter of law.
On the first statutory condition, crimes of the same or similar character, we note that earlier Kansas cases that have held consolidation or joinder to be appropriate have generally had multiple commonalities, not merely the same classification of one of the crimes charged. See State v. Carr, 300 Kan. 1, 101-04, 331 P.3d 544 (2014) (victims identified defendants; aspects of modus oper-andi consistent between crimes); State v. Cruz, 297 Kan. 1048, 1055, 307 P.3d 199 (2013) (both victims leaving nightclub at closing time; both accosted before reaching vehicle; both had little warning before shot repeatedly; same gun used; defendant identified in both cases; both cases charged first-degree murder, criminal possession of firearm); State v. Gaither, 283 Kan. 671, 687, 156 P.3d 602 (2007) (both victims drug dealers; defendant on quest for drugs during both; both victims shot with 9 mm handgun; both occurred in private dwellings; 5-daytime span); State v. Barksdale, 266 Kan. 498, 506-10, 973 P.2d 165 (1999) (both crimes murder; victims lulled in similar manner; robbery common motive); State v. Crawford, 255 Kan. 47, 48, 53-54, 872 P.2d 293 (1994) (both crimes robbery; victims identified defendant; similar modus operandi).
Plere, although each case involved a single homicide, the homicides lacked many other similarities. The murder of Mack was tied to a burglary, apparently targeted at a large amount of marijuana in his possession. Mack was apparently shot suddenly from across the room while he was seated or in the process of standing up to face at least one of the burglars. In contrast, Letourneau and Smith-Parker, as the district judge found, were so close that they considered themselves brothers and had spent much of several days in one another’s company. Letoumeau’s death followed an argument between him and Smith-Parker over Letourneau’s treatment of Letourneau’s girlfriend. Whether that argument provided a motivation for die fatal shooting or the shooting was accidental or a suicide was disputed. On this slim record, we cannot say as a matter of law that the first statutory condition for consolidation or joinder was met.
It is plain that the second statutory condition—the cases or crimes were based on the same act or transaction—is inapplicable.
We therefore move to consideration of the third statutory condition—whether the cases or crimes were based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
We agree with the defense that certain of the district judge’s factual findings should have contributed little to his legal analysis of this statutory condition.
In Hurd, 298 Kan. at 562, the district judge had said: “ ‘[T]he temporal proximity of these two charges are closely related, and it appears the witnesses would be mostly the same as well, at least some of the same witnesses, and based upon tire court calendar, these two cases will be consolidated and are consolidated for trial/ ”
We clarified that the “connected together” phrase from the third statutory condition precedent would be applicable in three situations: (1) when the defendant provided evidence of one crime while committing another; (2) when some of the charges were precipitated by other charges; or (3) when all of the charges stemmed from a common event or goal. 298 Kan. at 562 (citing State v. Donaldson, 279 Kan. 694, 699-700, 112 P.3d 99 [2005]).
We rejected the notion that a trial court’s calendar was a valid consideration for consolidation. We then turned to the remaining two rationales articulated by the district judge to support the third statutory condition, including the judge’s reliance on the defendant’s father providing evidence of one of defendant’s crimes while reporting defendant’s commission of another crime. 298 Kan. at 562-63.
We rejected the idea that temporal proximity and similar witnesses were sufficient bases for joinder or consolidation under the third statutory condition precedent. 298 Kan. at 563. And we rejected the idea that the defendant’s father’s evidence satisfied the “connected together” statutory condition because it was available only if tire “defendant provides evidence of one crime while committing another.” 298 Kan. at 563. In Hurd, the defendant’s father’s evidence was not sufficient. See 298 Kan. at 563; see also State v. Anthony, 257 Kan. 1003, 1016-17, 898 P.2d 1109 (1995) (police taped conversation between defendant, informant to whom defendant was selling cocaine; during conversation, defendant provided direct evidence of his involvement in robbery, murder; sale of cocaine charge thus connected with robbery, murder charges).
Thus, under the guidance of Hurd, we cannot rely on mere temporal proximity or similar witnesses to support the district judge’s consolidation decision under the third statutory condition in this case. Nor can we rely on the fact that officers found items stolen during the burglaries while searching for evidence related to Le-toumeau’s death. Smith-Parker did not personally provide “evidence of one crime while committing another crime.” See 298 Kan. at 563.
There are, however, sufficient other ties between Smith-Parker s two cases to support the judge’s legal conclusion under the third statutory condition.
The ballistics evidence is the strongest among those ties. It demonstrated that the gun used to shoot Mack was the same gun used to shoot Letourneau. Shell casings at both crime scenes matched. The district judge specifically made a factual finding that tire ballistics evidence tied the two crimes together. That finding alone is sufficient to satisfy the third statutory condition.
Our conclusion is further bolstered by the evidence that ultimately came out at trial. Smith-Parker admitted he had been in possession of the gun after Letourneau was shot and had disposed of it during his race to the hospital. His choice to dispose of the gun when his friend was bleeding from a head wound was particularly damaging evidence for the defense. And other evidence reinforced that a .22 had been seen in the possession of Smith-Parker and Letourneau in the period of time covering both crimes.
In short, the evidence supporting Smith-Parker’s conviction of the second crime also tended to support his conviction of the first crime. The ballistics evidence from the scenes and Smith-Parker’s admission of possession and disposal of the gun used in the second crime, along with witnesses’ observations of such a gun being traded contemporaneously between him and Letourneau, helped to place Smith-Parker at tire scene of and participating in Mack’s murder. The two crimes—and the two cases that arose out of them—were sufficiently “connected together” to satisfy K.S.A. 22-3202(1).
Having determined that one of tire statutory conditions was present as a matter of law, we turn to whether the district judge abused his discretion by choosing to consolidate the cases for trial. See Hurd, 298 Kan. 555, Syl. ¶ 1.
Judicial discretion is abused if judicial action
“(1) is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take 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., 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 burden of demonstrating error is on the party alleging the abuse. State v. Burnett, 300 Kan. 419, 449, 329 P.3d 1169 (2014); see also State v. Tague, 296 Kan. 993, 1002, 298 P.3d 273 (2013) (burden of showing abuse of discretion on party claiming error).
Smith-Parker’s arguments do not focus clearly on this step; the only portion that could be construed as addressing it is his argument that consolidation led to prejudicial admission of other-crimes evidence under K.S.A. 60-455. But “ ‘Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455.’ ” Gaither, 283 Kan. at 688 (quoting Barksdale, 266 Kan. at 510).
We hold that the district judge’s consolidation of the two cases against Smith-Parker was not error. We need not reach the third step under Hurd, i.e., whether any error in consolidation demands reversal.
Letourneaus Out-of-Court Statement
At trial, Smith-Parker sought to introduce a statement Letour-neau made to Yanik-Ducharme in the hours before his death. According to Yanik-Ducharme, Letourneau told her that “[she] and the lads we’ll never-—-we’ll never have to see him again.” The district judge ruled that the statement was inadmissible and said that it would pose a Confrontation Clause issue under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and no hearsay exception applied.
The district judge’s Confrontation Clause ruling was based on a faulty premise—that the State has a right of confrontation equal to that of a defendant. This is not the case. Crawford held that “a witness’ testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable to testily at trial, the defendant had a prior opportunity for cross-examination.” (Emphasis added.) State v. Bennington, 293 Kan. 503, 508, 264 P.3d 440 (2011); see Crawford, 541 U.S. at 42 (“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” [Emphasis added.]).
The admissibility of Letourneau’s statement therefore should have been analyzed only under our hearsay statutes.
Hearsay is any statement “which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 60-460.
Smith-Parker argues that the Letourneau statement was not offered for the truth of the matter asserted, i.e., that Letourneau would literally never see Yanik-Ducharme or the children again, but instead to demonstrate Letourneau’s state of mind, i.e., that “Letourneau was so riddled with guilt over his treatment of Yanik-Ducharme that he would contemplate suicide.”
“Ordinarily a statement offered merely to stow the declarant’s state of mind is admissible. This is true either because it is not offered to show tire truth of the matter asserted and therefore does not qualify as hearsay in tire first place, see [State v. ] Boldridge, 289 Kan. [618,] 634, [215 P.3d 585 (2009)]; or, even if it qualifies as hearsay, it fits under a statutory exception for statements describing the then-existing state of mind of the declarant, see K.S.A. 60-460(1).” State v. Cosby, 293 Kan. 121, 128, 262 P.3d 285 (2011).
In State v. Becker, 290 Kan. 842, 847, 235 P.3d 424 (2010), we held that statements, such as: “ ‘[T]hey shut tire door and said if anybody comes out of here we’re going to shoot them,’ and They told me that they were going to be back at 5:00 a.m. and I better have drugs or money or they were going to kill me’ ” did not constitute hearsay “because they were not presented to prove the truth of tire assertions.” We noted that “[i]t is irrelevant and unnecessary to know, for example, whether [defendant’s two accomplices] really would have shot anyone who attempted to leave the back bedroom while they interrogated [two victims].” 290 Kan. at 847. We drew a contrast between the statements in issue there and the one in issue in State v. Harris, 259 Kan. 689, 699, 915 P.2d 758 (1996),“where the out-of-court threatening statement was offered to prove” the truth of the threat .communicated in order to demonstrate “premeditation in the killing of the person about whom the threat was made.” Becker, 290 Kan. at. 847. In Becker, “the threats were offered as explanations for why the people who heard the threats responded as they did—staying-in a room, for example, or leaving for another town.” 290 Kan, at 847. In other words, the threats were admitted to demonstrate the effect they had on those who heard them, not their literal truth.
Similar to the statements in Becker, the literal truth of the statement in this case was irrelevant to Smith-Parkers defense. Whether Yanik-Ducharme and the children would see Letourneau again had no bearing on the case. But tire fact that Letourneau said it could be revealing about why he would shortly thereafter wave a gun around recklessly and point it at his own head. It was error for the district judge to exclude Yanik-Ducharme’s testimony about Letourneau s statement.
Because this is not the only error we detect in Smith-Parkers trial, we defer our discussion of reversibility to our cumulative error discussion section below.
Jury Instruction
Smith-Parker next argues that the juiy instruction on alternative first-degree murder theories contained a misstatement of law with respect to reasonable doubt. The instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of tire claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Because Smith-Parker did not object to the jury instruction he now complains of on appeal, we review this issue for clear error. See K.S.A. 22-3414(3).
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To malee that determination, the appellate court must consider whether tire subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had tire instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” State v. Williams, 295 Kan. 506, Syl. ¶ ¶ 4, 5, 286 P.3d 195 (2012).
This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they had no reasonable doubt on the elements of the crime. 227 Kan. at 354. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. 227 Kan. at 354. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.
Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, see State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011) (juries possess power to decide case contrary to applicable facts and law, i.e., power of jury nullification, but defendant not entitled to instruction on power), the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Cf. State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (“Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.”). Both the wording of the instruction at issue in Lovelace—“must”—and the wording at issue here— “will”—fly too close to the sun of directing a verdict for tire State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.
As with the erroneous exclusion of Letourneau’s out-of-court statement, we do not proceed to analysis of whether this instruc tional error required reversal standing alone. Rather we consider it with other identified errors in our cumulative error discussion section below.
Failure to Instruct Jury to Begin Deliberations Anew
After juror N.B. had been dismissed and replaced by alternate V.W., the district judge told the members of Smith-Parlcer’s jury: “[Y]ou are now instructed to return to the jury room and continue your deliberations and include [V.W.] into your deliberation process.” (Emphasis added.)
When a juror is replaced after deliberations have begun, the district judge must instruct the jury to begin its deliberations anew. See State v. Cheek, 262 Kan. 91, Syl. ¶ 1, 936 P.2d 749 (1997) (“The substitution of an alternate juror for an original juror after deliberations have begun is constitutionally permissible where good cause has been shown and the jury has been instructed to begin deliberations anew.”). The parties agree that the district judge erred by not instructing the juiy to begin its deliberations anew in this case. See 262 Kan. 91, Syl. ¶ 3.
Again, we defer our analysis of this error’s reversibility to our cumulative error discussion section below.
Motion to Recall Jury
Smith-Parker argues that the district judge erred in not granting his motion to recall the jury after N.B. had alleged that the other jurors requested that he be removed based on his voting position. Our review of a district judge’s decision on a motion to recall is limited to abuse of discretion. State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000).
“However, '[i]f a defendant’s constitutional right has been violated during a trial, a judge’s discretion to deny a motion ... to recall a jury is limited. At this point, there is greater reason for the judge to articulate the reasons for his or her “discretionary” decision.’ Jenkins, 269 Kan. at 338. Whether a defendant’s due process rights were violated is a question of law over which this court exercises unlimited review. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).” State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008), overruled on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013).
The State argues that any error in failing to recall the jury in this case qualifies as invited, because it was Smith-Parlcer s counsel who suggested replacing N.B. when the presiding juror asked if N.B. could be removed. Smith-Parker’s counsel did últimately agree to the replacement, but our review of the record on appeal persuades us that the State was the first to suggest that removing N.B. and replacing him would be appropriate. Be that as it may, the judicial ruling Smith-Parlcer now challenges on appeal is not the removal and replacement during deliberations, but the failure to recall any of the members of the jury to testify live once N.B. raised the issue of juiy misconduct in his letter to the judge after the trial. The invited error argument misses this mark.
With respect to the propriety of recalling the jury, this court has said:
“Jurors may be recalled for post-trial hearings only by order of foe court after a hearing on a request to recall foe jury. A recall of the juiy is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in foe jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon foe party seeking an order to recall foe jurors to show foe necessity for foe order. Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985).” State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (1987).
This court has also stated:
“Where a party alleges jury misconduct, .die trial judge is required to recall the juiy if die judge cannot determine tiiat the evidence supporting die otiier party is substantial and diat the jury misconduct did not relate to a material issue in dispute. When the jury is recalled, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences of a juror’s misconduct, eidier within or widiout die jury room, which were substantially material to the issues being determined.” Saucedo v. Winger, 252 Kan. 718, Syl. ¶ 3, 850 P.2d 908 (1993).
In this case, die defense did not initially claim jury misconduct. Rather, the possibility of its existence and magnitude sufficient to fatally pollute Smith-Parker’s convictions came to the district judge’s and the parties’ attention because of N.B.’s posttrial letter to the judge. In that remarkably literate document, N.B. asserted that his fellow jurors had sought his dismissal because of his leanings toward the defense rather than his inability to understand his second language of English as it was used in the jury’s instructions.
N.B.’s unsolicited letter contradicted at least the impression left, if not deliberate misinformation imparted, by the presiding juror during trial and in a posttrial affidavit. Although N.B.’s voir dire responses may also have contributed to a context ripe for misunderstanding by the district judge, they did not resolve the contradiction between his later letter and the presiding juror’s later representations. Indeed, we see no way the contradiction could have been resolved short of calling N.B. and the presiding juror back into the courtroom to testify live about events during deliberations. Their competing versions of those events could then be fully explored, their credibility fully evaluated, and a factual determination made as to whether any jury misconduct occurred. This was what the defense sought, and it was entitled to it. Failure to recall at least N.B. and the presiding juror was error.
We need not address whether this error was harmless or reversible standing alone, because we take up the issue of reversibility in our cumulative error discussion section below.
Cumulative Error
We have found four errors: the exclusion of Letourneau’s out-of-court statement, the faulty jury instruction, the failure to instruct the jury to begin its deliberations anew after N.B. was replaced with an alternate juror, and the denial of Smith-Parker’s motion to recall at least N.B. and the presiding juror to investigate the allegation of jury misconduct.
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).” State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013).
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the out come of the trial is such that collectively they cannot be determined to be harmless.” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
“In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the district court dealt with the errors as they arose (including tire efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and tire strength of the evidence.” 293 Kan. at 205-06.
“ ‘The test is whether the totality of the circumstances substantially prejudiced tire defendant and denied him or her a fair trial.’ ” State v. Magallanez, 290 Kan. 906, 926, 235 P.3d 460 (2010).
The State’s evidence against Smith-Parker cannot be characterized as overwhelming. The evidence of Smith-Parker’s premeditation in the murder of Mack was purely circumstantial. The evidence of exactly how Letourneau came to be shot in the head was conflicting, far from conclusive. The district judge’s erroneous exclusion of Yanik-Ducharme’s testimony about Letoumeau’s statement prevented Smith-Parker from presenting one of the few pieces of evidence he had to corroborate at least one of his versions of the events.
In addition, the three other errors we have identified are serious. Each calls into question the fairness of the trial that Smith-Parker received. The instruction error and the failure to tell tire jury to begin its deliberations anew with the alternate juror incorrectly informed the jury about how to pursue its deliberations. The failure to recall N.B. and the presiding juror to testify live prevented a full investigation of whether jury misconduct occurred.
Under these circumstances, we must reverse Smith-Parker’s convictions under the cumulative error doctrine. The combination of the overall weakness of the evidence against him and multiple serious procedural defects tainting the process mean Smith-Parker was substantially prejudiced under the totality of tire circumstances and denied a fair trial. See Magallanez, 290 Kan. at 926. The consolidated cases must be remanded to the district court for further proceedings.
Conclusion
Cumulative error requires reversal of all of Smith-Parker’s convictions and remand to the district court for further proceedings.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Lucas L. Thompson, of Topeka, an attorney admitted to the practice of law in Kansas in 2008.
On May 12, 2014, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on June 9, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on July 1, 2014, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); 8.4(g) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); 8.1(b) (2014 Kan. Ct. R. Annot. 670) (failure to respond to lawful demand for information from disciplinary authority); Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 208 (2014 Kan. Ct. R. Annot. 356) (registration of attorneys); and Kansas Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414) (notification of clients upon suspension).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“Kansas License
“8. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on September 26, 2008. On September 18, 2013, the Kansas Supreme Court entered an order suspending the respondent’s license to practice law for failing to pay the annual registration fee, for failing to pay the annual continuing legal education fee, and for failing to comply with the annual continuing legal education requirements.
“Missouri License
“9. In 2009, the Missouri Supreme Court admitted the respondent to the practice of law. On March 3,2013, the Missouri Supreme Court entered an order suspending the respondent’s license to practice law. Thereafter, on May 10, 2013, the Missouri Supreme Court entered an order striking the respondent’s name from the roll of attorneys authorized to practice law in the State of Missouri.
“Complaint filed by A.L.
“10. On July 26, 2013, A.L. filed a complaint against the respondent. A.L. served as the president of a bank. A.L. retained the respondent to seek satisfaction of a judgment lien, on behalf of the bank, in Dickinson County, Kansas.
“11. The respondent and A.L. also had a personal relationship. At the time A.L. retained the respondent, the respondent was married to A.L.’s daughter. During the course of the representation of the bank, the respondent and his wife became estranged and ultimately divorced. A.L. filed the complaint after the divorce was pending.
“12. The disciplinary administrator docketed A.L.’s complaint for investigation. The disciplinary administrator and the attorney assigned to investigate A.L.’s complaint, Rebecca Floyd, wrote to the respondent, directing him to provide a written response to the complaint. The respondent failed to provide a written response to A.L.’s complaint. In this answer, the respondent provided the following explanation for his failure to provide a written response to the complaint:
\ .. Respondent went through significant life changes between January, 2013, and December, 2013. These included a divorce involving two young children, an unamicable dissolution of a legal partnership, more than 8 months of unemployment, and more than a month of homelessness. During this time, Respondents address changed several times. Respondent apparently inadvertently neglected to notify some registration offices, however, Respondent has maintained the same phone number and email address as listed above for more than a year and would have had the same contact information during this time. This information would have been available from Shawnee County Court Records as well as from Complainant. Investigators for the Disciplinary Administrator’s office have contacted Respondent using these methods. So it is assumed die Office had the information as well. The diligence and effort needed to contact Respondent using these methods should have been minimal.
‘Furthermore, Respondent would have communicated with any investigator by telephone if the opportunity arose. Respondent decided not to respond in writing to the complaint because Respondent is involved in an ongoing custody dispute with the Complainant’s daughter and every time Respondent makes an effort to formally defend himself from different false allegations directed by Complainant, Complainant’s daughter re-doubles efforts to deprive Respondent of his time with his children. Frankly Respondent’s children were given priority over fallacious disciplinary complaints. This does not reflect apathy toward the Ethics rules or Office of the Disciplinary Administrator,, but was a decision made, even if made incorrecdy or mistakenly.
‘On at least two occasions, Complainant has specifically stated to Respondent that Complainant would do “whatever it takes” to either “see [Respondent] in prison” or “taire [Respondents] law license.” ’
“13. Despite the respondent’s lack of cooperation, Ms. Floyd proceeded with her investigation. In his complaint, A.L. referenced a bankruptcy case. In her investigation, Ms. Floyd made contact with L.C., the debtor in the referenced bankruptcy case.
“14. L.C. retained tire respondent to file a chapter 7 bankruptcy case on her behalf. L.C. paid tire respondent $1,400 for the representation. L.C. provided tire respondent with all of the financial documents necessaiy to file the case.
“15. On May 30, 2013, the respondent filed an undated and unsigned chapter 7 statement in the United States Bankruptcy Court, on behalf of L.C. The pleadings filed by tire respondent were insufficient. The clerk of the bankruptcy court attempted to contact the respondent to advise him that tire pleadings were insufficient. However, the contact information provided by the respondent was incorrect. After obtaining a mobile telephone number for tire respondent, the clerk left a message for tire respondent regarding the matter.
“16. At some point, the respondent assured tire clerk that he would file corrected pleadings on behalf of L.C. However, the respondent failed to do so. Additionally, after learning that the pleadings were insufficient, the respondent failed to inform L.C. that the pleadings filed on her behalf were insufficient.
“17. On June 6, 2013, the court dismissed the chapter 7 bankruptcy case filed on behalf of L.C. based on the insufficient pleadings filed by the respondent. After the bankruptcy was dismissed, the respondent failed to inform L.C. that the case had been dismissed.
“18. On July 15, 2013, the respondent filed a motion to reinstate the case, reporting to the court that during his initial attempt at filing, the documents did not properly upload. The respondent also reported that he had attempted to correct the matter before the case was dismissed, but was unable to do so due to an illness and an ongoing computer problem. The court granted the respondent’s motion and reinstated L.C.’s chapter 7 bankruptcy case.
“19. L.C. attempted to contact the respondent regarding her pending bankruptcy case. The respondent failed to maintain contact with L.C. The respondent failed to provide L.C. with information regarding the representation.
“20. Because the respondent failed to maintain contact with her, L.C. contacted Kansas Legal Services for representation. Kansas Legal Services connected L.C. with Mack & Associates. L.C. retained Mack & Associates to complete the bankruptcy case and L.C. paid Mack & Associates $700 for the representation.
“21. Thereafter, on February 24, 2014, Mack & Associates entered its appearance for L.C. Mack & Associates assisted L.C. in finalizing the chapter 7 bankruptcy case.
“Conclusions of Law
“22. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.4, KRPC 8.1, KRPC 8.4(g), Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 218, as detailed below. [Footnote: The disciplinary administrator also alleged that the respondent violated KRPC 1.1, KRPC 1.3, and KRPC 5.5. The hearing panel concludes that clear and convincing evidence was not presented to establish a violation of KRPC 1.1, KRPC 1.3, and KRPC 5.5.]
“KRPC 1.4
“23. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, tire respondent violated KRPC 1.4(a) when he failed to keep L.C. advised regarding the status of the case, when he failed to inform L.C. that her bankruptcy case had been dismissed, and when he failed to inform her that his license to practice law had been suspended and he was no longer able to represent her. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 8.4(g)
“24. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). Fed. Dist. Ct. R. 83.6.4 requires a lawyer admitted to practice in the United States District Court for the District of Kansas to notify the clerk of that court if the lawyer is disciplined in another jurisdiction. The respondent’s state licenses to practice law were suspended and he failed to notify the federal court of those facts. Thus, the hearing panel concludes that tire respondent engaged in conduct that adversely reflects on his fitness to practice law when he failed to notify tire clerk of the bankruptcy court that his licenses to practice law had been suspended and he was no longer eligible to practice in federal court and therefore no longer able to represent L.C. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“KRPC 8.1 and Kan. Sup. Ct. R. 207(b)
“25. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide tire 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).
Tt shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to tire Disciplinary Administrator any information he or she nray have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The respondent knew that he was required to forward a written response to the initial complaint—he had been instructed to do so in writing by tire disciplinary administrator and Ms. Floyd. Further, at the hearing on the formal complaint, the respondent testified that he knew he was required to provide a written response to the complaint but chose not to in an effort to avoid any undesirable consequences regarding his ability to spend time with his children. Despite tire respondent’s personal troubles, he is required to cooperate in disciplinary investigations. Accordingly, because tire respondent intentionally failed to provide a written response to the initial complaint filed by A.L., tire hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“Kan. Sup. Ct. R. 208
“26. Attorneys are required to comply with the annual registration requirements as set forth in Kan. Sup. Ct. R. 208. The respondent failed to comply with the annual registration requirements by failing to pay the annual registration fee, failing to pay the annual continuing legal education fee, and failing to comply with the annual continuing legal education requirements. Thus, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 208.
“Kan. Sup. Ct. R. 218
“27. After an attorney’s license is suspended, the respondent must comply with Kan. Sup. Ct. R. 218. Kan. Sup. Ct. R. 218 requires a suspended attorney to notify clients, opposing counsel, and the courts of the suspension. Following die respondent’s suspension, the respondent failed to notify his clients, opposing counsel, and the courts of his suspension. Thus, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 218.
“American Bar Association Standards for Imposing Lawyer Sanctions
“28. In making this recommendation for discipline, the hearing panel considered the factors outlined by tire American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, tire potential or actual injury caused by tire lawyer’s misconduct, and tire existence of aggravating or mitigating factors.
“29. Duty Violated. The respondent violated his duty to his client to provide adequate communication. Additionally, the respondent violated his duty to the legal profession to comply with the annual registration requirements.
“30. Mental State. The respondent knowingly violated his duties.
“31. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to L.C. and potential injury to the legal profession.
“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 1.4, KRPC 8.1, KRPC 8.4(g), Kan. Sup. Ct. R. 207, Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 218. Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“34. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent failed to provide a written response to the complaint in this case. The respondent was instructed to do so by the disciplinary administrator and Ms. Floyd. The respondent’s failure to provide written responses to the complaint amounts to bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules and orders of the disciplinary process.
“35. Indifference to Making Restitution. To date, the respondent has taken no action to reimburse L.C. for the additional attorney fees she in curred as a result of the respondent’s misconduct or refund any unearned attorney fees.
“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, tire 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. Inexperience in the Practice of Law. The Kansas Supreme Court admitted the respondent to the practice of law in 2008. At the time of the misconduct, tire respondent had been practicing law for less than 5 years. Thus, the hearing panel concludes that the respondent is inexperienced in tire practice of law.
“40. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘6.12 Suspension is generally appropriate when a lawyer knows 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.
‘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, die public, or die legal system.’
“Recommendation
“41. The disciplinary administrator recommended that the respondent be suspended for a period of 1 year. The respondent argued that a suspension of 1 year seemed severe.
“42. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends diat the respondent be suspended for a period of 1 year. The hearing panel further recommends that prior to reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the respondent should be required to establish that he has complied with the annual registration requirements and has reim bursed L.C. for tlie fees she paid to Mack & Associates to complete the bankruptcy case. Finally, tire hearing panel recommends that the effective date of the suspension be made retroactive to September 18,2013, tire date of the administrative suspension.
“43. Costs are assessed against the respondent in an amount to be certified by the Office of tire Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2014 Kan. Ct. R. Annot. 363). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent was given adequate notice of tire formal complaint, to which he filed an answer; he filed no exceptions to the hearing panel’s final hearing report. With no exceptions before us, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2014 Kan. Ct. R. Annot. 383). Furthermore, the evidence before the hearing panel establishes the charged misconduct in violation of KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); 8.4(g) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); 8.1(b) (2014 Kan. Ct. R. Annot. 670) (failure to respond to lawful demand for information from disciplinary authority); Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 208 (2014 Kan. Ct. R. Annot. 356) (registration of attorneys); and Kansas Supreme Court Rule 218 (2014 Kan. Ct. R. Annot. 414) (notification of clients upon suspension) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. Before this court, the office of the Disciplinary Administrator recommended that the respondent be suspended for a period of 1 year and that, prior to reinstatement, he be required to appear at a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2014 Kan. Ct. R. Annot. 415). The hearing panel recommended that respondent be suspended for a period of 1 year, that respondent undergo a Rule 219 reinstatement hearing, and that at the reinstatement hearing, the respondent should be required to establish that he has complied with the annual registration requirements and has reimbursed L.C. for the fees she paid to Mack & Associates to complete the bankruptcy case. Finally, the hearing panel recommended that the effective date of the suspension be made retroactive to September 18, 2013, the date of the administrative suspension.
We hold that respondent should be suspended for a period of 1 year, that respondent undergo a Rule 219 reinstatement hearing, and that at the reinstatement hearing, the respondent should be required to establish that he has complied with the annual registration requirements and has reimbursed L.C. for the fees she paid to Mack & Associates to complete the bankruptcy case. Finally, we hold that the effective date of the suspension be made retroactive to September 18, 2013, the date of the administrative suspension.
Conclusion and Discipline
It Is Therefore Ordered that Lucas L. Thompson be and is hereby suspended from the practice of law in the state of Kansas for a period of 1 year, in accordance with Supreme Court Rule 203(a)(3) (2014 Kan. Ct. R. Annot. 306), and that the effective date of the suspension be made retroactive to September 18, 2013, the date of the administrative suspension. It is further ordered that, prior to reinstatement, respondent undergo a Rule 219 reinstatement hearing, and that at the reinstatement hearing, the respondent should be required to establish that he has complied with the annual registration requirements and has reimbursed L.C. for the fees she paid to Mack & Associates to complete the bankruptcy case.
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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Pierron, J.:
Tyson Fresh Meats, Inc., formerly known as IBP, Inc., (Tyson) appeals from the Workers Compensation Board’s (Board) ruling awarding permanent partial disability benefits to Frank Garcia.
Garcia began working for the Tyson on September 19,1988. For 2 years and 11 months he worked in the intestine room, trimming fat off intestines. The intestines were full of fecal matter and Garcia had to pick the intestines up out of dirty water to trim them. Though Garcia wore gloves, dirty water got inside the gloves and onto his hands.
Garcia began to have problems with his skin in 1991 or 1992. His hands started itching and he reported it to the company nurse. Garcia’s hands were weak, painful, itchy, swollen, and discolored. The nurse gave him some cream for his hands, and he was referred to a physician in December 1992. The doctor saw Garcia and also gave him some creams for his hands. Garcia was assigned to a different job, working in the paint room at the plant, due to his problems with his hands. Although the condition did not go away completely, Garcia was able to control the outbreak of symptoms while he was working in the paint room by using the prescribed hand creams.
After 2 years in the paint room, Garcia was transferred back to the intestine room. However, he was given a different position than his previous work. This time he was responsible for cleaning out the insides of the intestines, which once again caused his hands to come into contact with fecal matter. The symptoms in his hands returned, and Garcia again reported the problem to the company nurse. He was again given hand creams, and eventually the nurse referred him to a doctor.
After approximately 3 years, a physician recommended that Garcia be transferred to a different position. Garcia was assigned to work outside, washing cows with a hose. He continued having some minor troubles with his hands while working in that position. After about a year at this position, Garcia was transferred to the laundry room. He worked there for 4 or 5 years, helping load and unload clothing. Garcia loaded 90 to 100 bags of laundry into each washing machine. These laundry bags contained clothes worn by the workers. The clodiing was very dirty and sometimes contained maggots. Garcia had to handle the clothing and may have occasionally come into contact with laundry detergents and soaps. During his 4 or 5 years working in the laundry room, Garcia again reported problems with his hands to his supervisor and the plant nurse. He was once again referred to a physician.
Garcia’s current job assignment is cleaning and sharpening knives. At the time of the second regular ALJ hearing on February 6, 2004, Garcia had been doing that job for about 5 years.
Garcia did not have any problems with his hands before he began working at the plant. He attributed his problems with his hands to his original job in the intestine room. The symptoms have come and gone over the years. Garcia claimed he was not able to lift anything heavy because his hands were weak, swollen, discolored, and itchy. He says a doctor instructed him not to lift anything more than 5 pounds. At the first regular ALJ hearing on October 17, 2003, Garcia testified that the plant nurses have given him hand cream twice a day for the past 11 or 12 years at the employer’s expense.
Dr. Peter Bieri conducted an evaluation of Garcia at his request. Dr. Bieri examined Garcia, reviewed medical records, and took a medical history from Garcia. Bieri concluded that exposure to chemicals resulted in an injury consistent with contact dermatitis on the dorsal surfaces of both hands. Dr. Bieri testified Garcia had reached maximum medical improvement and his impairment was permanent and stabilized. Dr. Bieri also stated Garcia had a 10% whole-person impairment for disorders of the skin, which was at tributable to this injuiy. The impairment rating was based on the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995).
In his amended application for hearing, Garcia alleged that he had a series of injuries or an occupational disease resulting in bilateral dermatitis which began on June 10, 1997. He stated the dermatitis was initially caused by his work in tire intestine room and that he had numerous flare-ups and aggravations since tire dermatitis first appeared.
The parties stipulated that Garcia earned $9.45 per hour for the pay period ending February 27, 1999, and earned $10.30 for the pay period ending August 23, 2003. Garcia’s average weekly wage was $417.35.
The administrative law judge (ALJ) found that Garcia had a functional impairment of 10% to the body as a whole. However, the ALJ also found Garcia had not suffered any loss of earning capacity as he was earning the same or greater wages than he was when the disease first affected his hands and, therefore, he was not entitled to a monetary award for his injuiy.
Garcia appealed to the Board for review of the ALJ’s decision. The Board accepted Dr. Bieri’s impairment assessment of 10% whole body permanent partial impairment and found Garcia was entitled to 41.5 weeks of permanent partial disability compensation at the rate of $278.25 per week, resulting in an award of $11,547.38.
On appeal, Tyson argues the Board erred by awarding permanent partial disability benefits when Garcia had not lost any wages as a result of the injury.
The interpretation of statutory provisions in the Workers Compensation Act is a question of law. Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on the court. The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).
There is no dispute over the facts in this case. Though Tyson contested the causation and extent of Garcia’s injuries below, it appears to concede that Garcia has dermatitis and his dermatitis qualifies as an occupational disease. Tyson’s only argument on appeal is that Garcia is not eligible for permanent disability benefits because he has not lost any wages as a result of his dermatitis. Tyson argues that diminution of earning capacity is the test for entitlement to permanent disability benefits in occupational disease cases.
Article 5a of Chapter 44 of the Kansas Statutes Annotated is titled “Occupational Diseases.” It is construed as part of the Kansas Workers Compensation Act. K.S.A. 44-5a22. The provisions of the Workers Compensation Act, including article 5a, are to be construed together. K.S.A. 44-574(a).
K.S.A. 44-5a01(a) states that the “disablement” of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident, and the employee shall be entitled to compensation for such disablement in accordance with the provisions of the Workers Compensation Act. Disablement is defined in K.S.A. 44-5a04(a) as “the event of an employee becoming actually incapacitated, partially or totally, because of an occupational disease, from performing the employee’s work in the last occupation in which injuriously exposed to the hazards of such disease.”
Occupational disease is defined as “a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged.” K.S.A. 44-5a01(b).
“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto.” K.S.A. 44-510e(a). The Kansas Supreme Court has held that scheduled injuries as listed in K.S.A. 44-510d are not applicable to occupational diseases. Schubert v. Peerless Products, Inc., 223 Kan. 288, Syl. ¶ 2, 573 P.2d 1009 (1978).
Both die ALJ and the Board found that Garcia had dermatitis, that dermatitis was an occupational disease, and tiiat Garcia suffered a disability which resulted in a 10% whole body functional impairment. Both the ALJ and the Board also found Garcia’s disability had not resulted in a loss of wages.
K.S.A. 44-510e(a) sets forth the method for computing benefits for temporary and permanent partial disabilities. In cases of permanent partial general disability, the extent of permanent partial disability is the extent to which the employee has lost the ability to perform work tasks, averaged together with the difference between preinjury and postinjury wages. Tyson focuses on this language and argues Garcia is not entitled to any compensation because he has not suffered any wage loss as a result of the dermatitis. However, K.S.A. 44-510e(a) goes on to say: “In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment.”
K.S.A. 44-510e(a) also states drat an employee is not entitled to receive permanent partial disability compensation in excess of the percentage of functional impairment as long as the employee earns wages equal to 90% or more of the average weeldy wage he or she was earning at the time of the injury. Furthermore, K.S.A. 44-5a04(b) provides a mechanism by which tire ALJ has the discretion to cancel an award if the employee has not lost any wages. It states that an ALJ may cancel an employee’s disability award if the employee has obtained work and is capable of earning the same or higher wages than he or she did at the time of disablement.
Clearly the Workers Compensation Act contemplated the situation where an employee has been disabled but is still capable of earning wages comparable to his or her preinjury wages. In those situations the employee is not entitled to receive compensation which is in excess of his or her functional impairment; however, the employee is not precluded from receiving any compensation for his or her injury. It is not unreasonable to find that 44-5a01(a) requires that an employee who has been affected by an occupational disease caused by employment should be compensated for the effects of the disease. While a disability may not preclude a worker from earning a comparable wage, it may have a permanent adverse effect on his quality of life or his ability to work at other employment.
The Board’s determination that Garcia was entitled to an award to the extent of his functional impairment was a rational interpretation of the Workers Compensation Act.
Affirmed. | [
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Rulon, C.J.:
The State of Kansas appeals the imposition of a substantial downward durational and dispositional departure sentence imposed upon defendant Brian K. Ussery for his conviction for rape. We reverse and remand for further proceedings.
The defendant was charged with statutory rape of a 13-year-old girl, S.S., in violation of K.S.A. 2004 Supp. 21-3502(a)(2). The State, for some unknown reason, has failed to include a transcript of the trial within the record on appeal. Consequently, the underlying facts of the offense are rather vague. We are at a loss to understand what prompted the State not to furnish this court with a trial transcript.
On June 14, 2003, the victim was in the company of four young men, one of whom was the defendant. Prior to the rape of the victim, the victim became so intoxicated that the young men believed she might have alcohol poisoning and began to drive her to the hospital. We understand, however, that the decision was made not to admit the victim into the hospital, and the group returned to the apartment of a codefendant, D.J., a 17-year-old. The victim was so intoxicated that another codefendant, William N. Haney, carried the victim up the stairs to D.J.’s apartment.
Inside the apartment, Haney took off the victim’s clothes. The four young men requested to have sex with the 13-year-old victim. As we understand the facts, the victim stated she did not specifically agree to have sex, but she requested the young men use a condom if they were going to have sex with her. In an interview with the police, Haney reported the victim agreed to have sex with all four young men, provided each wore a condom. This defendant’s account to police differed somewhat because he claimed the victim encouraged the young men to have sex with her but insisted each wear a condom.
Each of the four men in the group engaged in sexual intercourse with the 13-year-old victim. D.J. had sex with the 13-year-old victim twice. ■
The codefendants were prosecuted separately. D.J. was offered a plea bargain and was tried as a juvenile. Haney and Ussery were tried as adults. A jury convicted Ussery of statutory rape, and he eventually filed a motion for a downward durational and dispositional departure sentence. Ussery contended a departure was warranted essentially based upon tire following factors: (1) the victim was a willing participant in the conduct for winch Ussery was convicted; and (2) the degree of harm or loss attributed to the offense was less significant than the typical offense of this nature.
After a hearing, the sentencing court granted Ussery’s departure motion, ordering him to serve a 60-month probation with an underlying sentence of 30 months. The presumptive guidelines sentence was 147 to 165 months. The reasons for the departure cited by the sentencing court involved (a) the relative sentences of the codefendants in relation to each defendant’s relative culpability; (b) the degree of harm associated with this particular crime; (c) the willing participation of the victim in the criminal conduct; and (d) Ussery’s receptiveness to rehabilitation.
The Departure Sentence
Under K.S.A. 21-4721(a), the State appeals the sentencing court’s dispositional and durational downward sentencing departure.
When enacting the Kansas Sentencing Guidelines Act (KSGA), the legislature determined the presumptive sentence, indicated by the guidelines grid, based upon the severity level of the crime of conviction and the criminal history score of the offender. This sentence should be imposed by the sentencing court unless the sentencing court finds substantial and compelling reasons to depart. K.S.A. 2004 Supp. 21-4716(a); see State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001).
When reviewing a sentencing departure, an appellate court must address two questions. First, are the sentencing court’s articulated reasons for departing from the presumptive sentence supported by substantial competent evidence? Second, is each stated reason for a departure substantial and compelling as a matter of law? See Murphy, 270 Kan. at 806. In reviewing a sentencing departure, this court considers only those factors articulated by the district court at sentencing. See K.S.A. 2004 Supp. 21-4716(a); State v. Hawes, 22 Kan. App. 2d 837, 839, 923 P.2d 1064 (1996) (citing State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 [1995]). Each factor cited by the district court does not need to provide a substantial and compelling basis to depart so long as one or more constitutes such a basis for departure. See State v. Minor, 268 Kan. 292, 311, 997 P.2d 648 (2000).
Although Ussery claims the sentencing court relied upon at least 11 factors to support a downward departure in this case, in some instances tire defendant confuses departure factors with the evidence used to support such factors. Many of the defendant’s so-called departure factors involve factual allegations which essentially support a single departure factor.
(a) comparison of codefendants
In sentencing Ussery, the court referred to the sentence imposed upon codefendant William N. Haney, whose sentence, in turn, was based upon the sentence imposed upon D.J., a juvenile codefendant. The sentencing court placed considerable weight upon the apparent disparity between the sole juvenile codefendant’s sentence, and the presumptive sentence for Ussery’s conviction, in light of each codefendant’s relative culpability. The court noted the juvenile codefendant was nearly 18 years old and the primary instigator of the events culminating in sexual intercourse with the 13-year-old victim by each of the young men. The juvenile codefendant had provided the alcohol to the victim and had engaged in two separate acts of sexual intercourse with the victim. Yet, while the 18-year-old codefendants were tried as adults, the juvenile codefendant was offered a plea agreement in which the State dismissed one rape charge and a charge of furnishing alcohol to a minor. The State tried D.J. as a juvenile, and the juvenile court imposed a sentence of 30 months in a juvenile detention facility.
Relying upon State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992); State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979); and Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980), the sentencing court reasoned that the relative culpability of the cod efendants and the juvenile codefendant’s lesser sentence provided a substantial and compelling basis to depart from the presumptive sentence when sentencing Ussery.
In attempting to review the sentencing court’s factual findings for substantial competent evidence, this court is severely hampered by the woefully inadequate record on appeal. While there is nothing within this record to support the sentencing court’s findings, neither is there contrary evidence. The sentencing court specifically stated that it had considered the trial evidence and statements made during the sentencing hearing, along with the pleadings, motions, and letters filed in the case, before ruling on Ussery’s departure motion. Because the State is now complaining of the sentencing court’s action, the State bears the burden of providing this court with a record sufficient to establish reversible error. The State may not fail to include a substantial portion of the record and then claim the sentencing court’s findings are unsupported. Without an adequate record, dris court must presume the sentencing court’s findings are properly supported. See Supreme Court Rule 3.03(a) (2004 Kan. Ct. R. Annot. 22); State v. Lumley, 25 Kan. App. 2d 366, 371, 963 P.2d 1238 (1998), aff'd 267 Kan. 4, 977 P.2d 914 (1999).
Presuming substantial competent evidence to support the district court’s findings, though, does not foreclose this court’s review of a sentencing departure. This court possesses unlimited review of a sentencing court’s, reliance upon any given departure factor as a legally sufficient reason to depart from the presumptive sentence. See State v. Favela, 259 Kan. 215, 232-33, 911 P.2d 792 (1996). In addressing this question, we note that nonstatutory departure factors are subject to greater scrutiny than those factors enumerated within K.S.A. 2004 Supp. 21-4716(c)(l). See Murphy, 270 Kan. at 807.
The sentencing court perceived Ussery’s conduct to be less culpable than the conduct of the juvenile codefendant and, therefore, found Ussery should not receive a sentence greater than the sentence imposed on tire juvenile codefendant. (The sentencing court presumably reasoned the juvenile codefendant possesaed greater culpability because D.J. brought the victim to his apartment, plied her with alcohol, and engaged in sexual intercourse on two separate occasions.)
Although K.S.A. 2004 Supp. 21-4716(c)(l)(B) permits a sentencing court to consider an offender s lesser or passive role in the crime, we are convinced there is nothing passive about Ussery’s criminal conduct. Ussery knew the victim was 13 years old; he knew the victim was intoxicated to the extent of potentially needing medical assistance; yet Ussery took advantage of the opportunity for his own sexual gratification. No one compelled Ussery to engage in sex with an intoxicated 13-year-old minor. That unfortunate decision, and therefore the responsibility, belonged entirely to each individual codefendant who engaged in sexual intercourse with the victim. The juvenile codefendant is not culpable for the conduct for which Usseiy was charged and convicted.
Arguably, the only apparent motivating influence supporting the sentencing court’s comparison of the codefendants here is the disparity between the sanction imposed on the juvenile codefendant and the presumptive sanction for each of the adult codefendants, who were admittedly no more culpable than the juvenile codefendant. The State’s flimsy response to the sentencing court’s rebanee upon this disparity is a declaration that the prosecutors who handled each of the cases communicated with one another to ensure relative equality among the codefendants. This weak statement does nothing to cast doubt upon the sentencing court’s reasoning. Not only is this declaration not tied to any support within the record but, even if the assertion is accepted as true, it does not explain the obvious disparity in presumptive sentences and does not answer the pertinent question on appeal, which is whether such a sentencing disparity can form a substantial and compelling reason to depart from a presumptive sentence.
Lack of equity in sentencing among codefendants is not a mitigating factor listed in K.S.A. 2004 Supp. 21-4716(c)(l) and is, therefore, subject to greater scrutiny. See Murphy, 270 Kan. at 807. In Bailey, our Supreme Court held:
“[T]he trial judge is not bound to sentence the defendant in [a] case to the same or a lesser sentence than that given his [or her] codefendant. The trial court, however, must consider the sentence given the codefendant and, if a longer sen tence is given, the reason for doing so should be set forth on the record.” 251 Kan. at 531.
While this statement may provide some meager support to the sentencing court’s reasoning, Bailey is distinguishable from the present case on at least two material points. First, Bailey involved indeterminate sentencing before the enactment of the KSGA. Second, the defendants in Bailey were both adults. Here, the sentencing court attempted to reconcile the sentence imposed upon a juvenile with that imposed upon an adult.
One of the motivating considerations for the enactment of the KSGA was to impose similar sanctions upon similarly situated defendants. This objective was implemented by imposing presumptive guidelines sentences based upon a criminal defendant’s criminal history score and the severity level of the crime committed. The legislature further provided that a sentencing court could deviate from the presumptive sentence only after noting substantial and compelling characteristics of the crime or the condition of the defendant which removed the offense from the normal crime of its type. See K.S.A. 2004 Supp. 21-4716(a). Because the legislature has taken into consideration equity in sentencing among similarly situated defendants in the guidelines sentences, the persuasiveness of the preguidelines cases cited by the sentencing court is diminished severely.
The relevance of the cases cited by the sentencing court is diminished further by reason of the status of the codefendants involved in this case. The legislature has denominated a legal distinction between this defendant and D.J., the juvenile offender. Because of his age, D.J. is legally classified as a juvenile, while Usseiy has passed his 18th birthday and is legally classified as an adult. In State v. Green, 218 Kan. 438, 442, 544 P.2d 356 (1975), our Supreme Court upheld a juvenile classification based on age against constitutional attack on the basis of equal protection.
“No valid challenge can be made because the Kansas Legislature could, in the exercise of its wisdom, withhold the protection of the doctrine of parens patriae from all juveniles exceeding fifteen years of age. What the legislature may do absolutely it may do conditionally, providing the conditions prescribed are applicable in like manner to every child in the class affected.” 218 Kan. at 442.
More recently, the United States Supreme Court tacitly approved the seemingly arbitrary line drawn between juveniles and adults at age 18 in holding that the application of capital punishment to juveniles (defined by the age of 18) violated the constitutional prohibition against cruel and unusual punishment. The Roper Court noted the cultural acceptance of 18-year-olds as adults and recognized that scientific and sociological studies have demonstrated a marked difference, generally, in the maturity, sense of responsibility, susceptibility to negative influences or social pressures, and lack of independent character between people under the age of 18 and those who are 18 years of age or older. See Roper v. Simmons, 543 U.S. 551, 569-70, 161 L. Ed. 2d 1, 125 S. Ct. 1183 (2005).
The delineation between juveniles and adults for purposes of prosecution and punishment is a public policy determination reserved to the legislative branch of government, except where constitutional principles apply. The Kansas Legislature has deemed it proper to hold persons under the age of 18 less accountable for their criminal conduct tiran Arose who have attained the age of 18. ConsequenAy, the legislature has prescribed lesser penalties for those who commit serious offenses as juveniles. While the legislature has provided the means to treat specified juvenile offenders as adults for purposes of prosecution and punishment, the legislature has not similarly chosen to provide for treatment of certain adults as juveniles. See K.S.A. 38-1636. Because the legislature has not deemed appropriate the consideration of adults as juveniles for purposes of prosecution and sentencing, the sentencing court’s attempt to circumvent the legislature’s policy decisions by so regarding the adult codefendants’ offenses is inappropriate. See State v. Heath, 21 Kan. App. 2d 410, 418, 901 P.2d 29 (1995) (holding that disagreement with the classification of a crime by the legislature is not a substantial and compelling reason to depart from the presumptive sentence).
However, in Roper, the United States Supreme Court did recognize that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” 543 U.S. at 574. The Kansas Legislature has likewise recognized that some adult defendants do not possess a normal capacity to reason, which should be considered as mitigation in sentencing, even though such diminished capacity does not provide a defense to the crime of conviction. See K.S.A. 2004 Supp. 21-4716(c)(l)(C). Similarly, our Supreme Court has expanded the scope of this mitigating factor to include a criminal defendant’s immaturity and impaired judgment due to age. See Favela, 259 Kan. at 237-38. Consequently, to the extent this sentencing court relied upon this defendant’s relative age, immaturity, or impaired judgment to justify a departure, the court’s reasoning could have provided a substantial and compelling reason to depart from the presumptive guidelines sentence.
The problem here, however, is that any proper consideration of Ussery’s age, immaturity, or impaired judgment was inextricably involved with the impermissible consideration of the juvenile codefendant’s sentence. The sentencing court should have considered Ussery’s diminished capacities, if any, only to the extent of his relative age, immaturity, and impaired judgment as distinguished from the average adult offender.
In this case, the sentencing court arguably assumed immaturity and impaired judgment solely on the basis of Ussery’s relative age to the juvenile codefendant. Such is not the individualized consideration required by the KSGA. The sentencing court did not properly compare Haney’s age, immaturity, and ability to exercise sound ■judgment with the attributes of an average adult. Consequently, the sentencing court erred in basing a downward departure on this reasoning.
(b) degree of harm or loss
The sentencing court further based Ussery’s downward departure sentence on a finding that the degree of harm or loss to the 13-year-old victim as a result of the sexual intercourse with Ussery was less than statutory rape typically causes. In particular, the court noted the relative ages of the victim and Ussery, and the absence of physical force or harm in the perpetration of the act.
While the age of a criminal defendant may be considered in relation to his or her ability to make good judgments, see Murphy, 270 Kan. at 807; Favela, 259 Kan. at 235, there are no Kansas cases holding the relative age of a child victim may be a mitigating factor. To the extent that a young adult exercises poor judgment due to his or her young age and lack of experience , an even younger victim cannot be expected to exercise greater judgment. Indeed, with respect to children under the age of 14, society presumes the child cannot exercise any judgment regarding consent to sexual activity. The legislature has consistently promulgated this public policy throughout the criminal statutes proscribing sex offenses. See K.S.A. 2004 Supp. 21-3502(a)(2) (rape); K.S.A. 21-3504(a)(l) (aggravated indecent liberties with a child); K.S.A. 21-3506(a)(l) and (a)(2) (aggravated criminal sodomy); K.S.A. 21-3511 (aggravated indecent solicitation of a child);' K.S.A. 2004 Supp. 21-3522 (unlawful, voluntary sexual relations).
In relying upon the relative ages of the victim and Ussery, the sentencing court suggests the harm to the victim is not as great because there is less disparity in age. This reasoning is totally flawed. A 13-year-old victim is no more capable of consenting, legally, to sexual activity with an 18-year-old than with a person who is 25 or 40. Furthermore, the trauma to the underage victim is potentially as great.
To the extent sexual activity is encouraged by an underage victim, the legislature has provided for mitigation. See K.S.A- 2004 Supp. 21-4716(c)(l)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation. See K.S.A. 2004 Supp. 21-4716(c)(l)(C); Favela, 259 Kan. at 237-38. Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence.
As support for this mitigating factor, the sentencing court was substantially influenced by the sanction imposed for unlawful voluntary sexual relations, K.S.A. 2004 Supp. 21-3522(a)(l). The commission of that offense, defined as voluntary sexual intercourse between a boy or girl who is between 14 and 16 years of age and a member of the opposite sex who. is. under the age of 19 and less than 4 years older than the victim, is a severity level 8 felony. The sentencing court reasoned that if the victim in this case had been 9 months older, Usseiy would only be facing a presumptive sentence of 7-9 months.
Under the district court’s reasoning, if the victim had been 9 months older, she could have legally consented to the sexual intercourse, and the defendants could not have been convicted of rape. See K.S.A. 2004 Supp. 21-3522(a)(l). Using the same reasoning, the defendants would have been guilty of aggravated indecent liberties with a child, a severity level 3 felony. See K.S.A. 21-3504(a)(l). Ussery was 11 days from his 19th birthday on the date of the offense. If he were 9 months older, he would be well over 19 years of age and could not qualify for the protection of K.S.A. 2004 Supp. 21-3522(a)(l). Moreover, the difference in age between Usseiy and the victim is more than 4 years, which would further disqualify him from the protection of K.S.A. 2004 Supp. 21-3522(a)(l).
As a result, the district court’s finding that the harm or loss occasioned by the rape in this case was less significant than a typical rape of its kind because of the relative ages of the victim and this defendant was improper. Such a comparison cannot form a substantial and compelling reason to depart from the presumptive sentence imposed for statutory rape.
Similarly, the lack of evidence of physical force or trauma in the commission of the rape does not support a finding the harm or loss in this case was less significant than typically occasioned by this offense. Even in rape cases in which consent is an issue, the victim does not need to demonstrate physical harm or force to demonstrate an absence of consent. In any rape case, the emotional and psychological trauma to the victim justifies a severe penalty.
The sentencing court made no finding about the emotional and psychological trauma to the victim caused by Ussery’s actions. Instead, the sentencing court found that statutory rape may encompass a wide range of trauma and harm. In Minor, the State appealed a downward sentencing departure in which the sentencing court had relied, in part, upon the supposed lack of harm or loss to the victim of aggravated criminal sodomy as a mitigating factor. Our Supreme Court held it was improper to depart from a presumptive sentence on this basis when the record was silent about what harm constitutes the typical harm or loss for this particular type of offense and there was no showing how the facts in the case made the harm less significant than in the normal case. 268 Kan. at 312.
The reasoning in Minor controls this case as well. There is nothing within the record, other than the sentencing court’s conclusory comments, to indicate the harm suffered by this particular victim was less significant than the harm normally associated with statutory rape. As in Minor, we disapprove the sentencing court’s use of this departure factor.
(c) participation of the victim
The sentencing court further relied upon the victim’s role in the events leading up to the statutory rape as support for the departure from the presumptive sentence. Specifically, tire sentencing court noted the victim was an experienced drinker (despite her age); the alcohol had not been furnished by this defendant; there were no threats, force, or weapons involved in Usseiy’s conduct; and the victim requested Usseiy wear a condom before engaging in sex with her. The sentencing court found further evidence at trial proved the victim’s complicity in sex with Ussery, without further elucidation. Without a copy of the trial transcript in this record on appeal, this court cannot review the evidence supporting the district court’s determination. Furthermore, in State v. Rush, 24 Kan. App. 2d 113, 942 P.2d 55, rev. denied 262 Kan. 968 (1997), this court held that a victim’s active participation in sexual conduct is not a defense to statutory rape.
Nevertheless, in Rush the sentencing court was presented with the victim’s statement that the challenged incident was the victim’s fault because she desired a relationship with the defendant and initiated the sexual intercourse for which the defendant was convicted of statutory rape. 24 Kan. App. 2d at 113-14. Relying upon an Idaho case, this court concluded the aggressive conduct of a victim leading to sexual intercourse is a substantial and compelling reason to depart from a presumptive sentence for statutory rape. 24 Kan. App. 2d at 116.
This case is distinguished from Rush. Here, there is no evidence before this court the victim admitted she solicited the sexual contact with this defendant. The only evidence presented in this appeal indicates the contrary. Furthermore, the sentencing court’s reliance upon some facts does not logically support a finding the victim was a voluntary participant in this crime. The victim’s experience or inexperience with alcohol is irrelevant to determining her voluntary participation in sexual activity when the record indicates she was clearly intoxicated at tire time of, or shortly before, the offense. Likewise, the fact Ussery did not furnish the alcohol consumed by the 13-year-old victim does not logically prove he did not take advantage of the victim in her intoxicated condition. The fact there is no evidence of threats, force, or weapons in the commission of tire crime is relevant, but tire relevance is obscured in light of the victim’s totally intoxicated condition.
In Minor, several witnesses at trial presented conflicting testimony concerning the voluntariness of the victim’s participation in the aggravated criminal sodomy at issue there. While the victim in Minor testified she was an unwilling participant, other testimony indicated the victim initiated the sexual activity. Our Supreme Court specifically approved the sentencing court’s resolution of this conflicting testimony at sentencing when the court found the victim had willingly initiated the sexual contact. Because victim participation is a mitigating departure factor listed in K.S.A. 2004 Supp. 21-4716(c)(l)(A), the Minor court concluded the sentencing court properly imposed a departure. 268 Kan. at 311.
Nevertheless, the record, as thin as it is, contains evidence supporting conflicting interpretations of the victim’s participation in the sexual activity for which Usseiy was convicted of statutory rape. According to the sentencing transcript, alone, there was evidence the victim was heavily intoxicated. But, there was evidence the victim was cognizant enough of Ussery’s intentions to request his use of a condom. In the absence of any threats or force used in the commission of the offense, such evidence arguably demonstrates the victim’s willingness to engage in sexual intercourse with Usseiy.
Without the possibility of reviewing the trial testimony here, this court cannot conclude the sentencing court’s resolution of the conflicting evidence is not supported by substantial competent evidence. See Lumley, 25 Kan. App. 2d at 371. Consequently, there was no error in the sentencing court’s reliance upon this statutory factor in granting Ussery’s motion for a downward sentencing departure.
(d) guidelines policy considerations
The sentencing court found Ussery’s offense was context-specific and his background demonstrated he was unlikely to pose a future threat to society. As such, considering several of the policy rationales of the KSGA, the sentencing court found a departure was warranted.
When presented with a sentencing departure motion, a sentencing court should consider the purposes and principles under which the KSGA was enacted, including (1) the belief that prison space should be reserved for serious or violent offenders; (2) the understanding the extent of sanction for criminal conduct should be based upon the harm inflicted; (3) the desire to create uniformity in the sanctions imposed, irrespective of socioeconomic, racial, or geographic factors; (4) the need for clarity in potential sanctions for specified conduct; (5) the desire to protect the public from serious offenders; (6) the goal of rehabilitation; and (7) the need to allocate public resources efficiently and wisely. See Favela, 259 Kan. at 233.
While a particular defendant’s amenability to rehabilitation is not a substantial and compelling reason to depart from the presumptive guidelines sentence by itself, a sentencing court may properly consider such evidence in the totality of the circumstances in determining the appropriate penalty to be imposed for a particular offense if other factors warrant departure. See Murphy, 270 Kan. at 806-07. In State v. Grady, 258 Kan. 72, 87-88, 900 P.2d 227 (1995), our Supreme Court also approved the sentencing court’s consideration of the defendant’s lack of a criminal histoiy as evidence of a lack of predisposition to commit future crimes.
Based upon the statements of character witnesses for Ussery at sentencing, we cannot conclude the sentencing court’s finding that the defendant was receptive to rehabilitation is erroneous. Each of tírese considerations, by itself was insufficient to justify a departure but, the sentencing court could properly consider such in the totality of the circumstances. See Murphy, 270 Kan. at 806-07.
Extent of the Departure
Based upon the findings regarding the voluntary participation of tire victim and tire defendant’s lack of criminal history and amenability to rehabilitation, the sentencing court acted within its authority in granting a downward sentencing departure. See Minor, 268 Kan. at 311 (citing State v. Zuck, 21 Kan. App. 2d 597, 603-04, 904 P.2d 1005, rev. denied 258 Kan. 863 [1995]). In addition, the sentencing court could properly weigh the context-specific nature of the offense, Ussaiy’s risk to society, and his receptiveness to rehabilitation within the totality of the circumstances in deciding the extent of the departure.
However, the extent of a sentencing departure is also subject to review by this court. “Under an abuse of discretion standard of review, the question is whether the extent of the sentencing court’s durational departure is consistent with the ‘enacted purposes and principles of [the] sentencing guidelines’ and ‘proportionate to the severity of the crime of conviction and the offender’s criminal history.’ ” Favela, 259 Kan. at 244 (quoting K.S.A. 1994 Supp. 21-4719[b.][l]).
An abuse of discretion standard of review is highly deferential to the sentencing court. In order to justify a reversal, the appellate court must be prepared to declare that die sentencing court’s decision was so arbitrary, fanciful, or unreasonable that no reasonable person in the position of the court would have reached a similar conclusion. See State v. Young, 277 Kan. 588, 597, 87 P.3d 308 (2004).
Here, the sentencing court granted not only a dispositional departure from presumptive prison to probation, but further departed significantly from a standard presumptive sentence of 155 months, down to 30 months. The underlying sentence imposed upon Ussery here is approximately equivalent to a severity level 5 person felony, as defined by the KSGA in 2002. See K.S.A. 2002 Supp. 21-4704. Offenses carrying similar penalties when committed by persons with similar criminal histories include indecent liberties with a child, K.S.A. 21-3503; sexual exploitation of a child, K.S.A. 2004 Supp. 21-3516; and aggravated sexual battery, K.S.A. 21-3518.
In Favela, our Supreme Court reviewed the extent of a departure in an attempted murder case. The sentencing court had reduced the presumptive attempted murder sentence of 51 to 59 months to 14 months, the equivalent of a sentence for aggravated assault. 259 Kan. at 244. In affirming the extent of the departure, the Favela court rejected the State’s argument that no reasonable person would impose a sentence for aggravated assault for a conviction of attempted murder.
At first glance, Favela arguably controls here. However, Favela is distinguishable. Favela had witnessed his brother being stabbed by Willard LaGrange. After taking his brother to the hospital, Faveia returned to the scene of the stabbing and brandished a gun, threatening to kill LaGrange. However, Favela did not specifically point his gun at any person. Eventually, Favela surrendered to the police without firing a shot. 259 Kan. at 216-17. In essence, the crime completed by Favela was equivalent to aggravated assault, even though his actions also supported a conviction for attempted murder. Under these circumstances and after considering the mitigating factors in favor of departing from the presumptive sentence, our Supreme Court concluded it was reasonable to reduce the defendant’s sentence to the equivalent of aggravated assault.
In contrast, Ussery was not charged with and convicted of an attempted crime. Based upon the victim’s voluntary participation, Ussery would still have been guilty of committing aggravated indecent liberties with a child, if the victim had legally been capable of consenting to sexual intercourse. Such an offense is a severity level 3 person felony, which in June 2003 carried a presumptive prison sentence of 55-59-61 months. See K.S.A. 21-3504(a)(l); K.S.A. 2002 Supp. 21-4704. Yet, here, the sentencing court departed even further.
While there are mitigating considerations, including the low probability Ussery would repeat a similar offense in the future and his receptiveness to rehabilitation, a downward sentencing departure to the equivalent of a level 5 person felony is disproportionate to the severity of the crime committed in this case (even considering the voluntary participation of the victim). We conclude no reasonable person would have departed from the presumptive sentence to such an extent when considering only the valid departure factors stated herein. Consequently, the departure was excessive under the factual circumstances presented here. The dispositional and durational departures constituted an abuse of judicial discretion. The sentence is vacated and the case remanded for resentencing proportionate to the act committed.
Partiality? Prejudice, Oppression, or Corrupt Motive
The State further contends the sentencing court’s departure sentence was improperly motivated by partiality, prejudice, oppression, or corrupt motive. The State’s brief on this issue is entirely conclusory. An issue raised but not argued is generally deemed abandoned. See State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003).
In State v. Sampsel, 268 Kan. 264, 997 P.2d 664 (2000), our Supreme Court considered a similar claim for improper motive behind a substantial downward departure in a statutory rape case. During the trial, evidence was presented that the victim was actively involved in promoting the sexual conduct of the defendant. 268 Kan. at 274.
The Sampsel court admonished the sentencing court for improper comments but refused to declare such comments were indicative of an improper motive or partiality in sentencing. If the sentencing court’s comments in Sampsel cannot be regarded as evidence of prejudice or partiality, there is nothing within this case to support such a conclusion. As a result, this issue must fail.
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Denied.
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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, John W. Thurston, of Manhattan, an attorney admitted to the practice of law in Kansas in 2001.
On February 25, 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 March 17, 2015. On April 7, 2015, respondent entered into a joint stipulation of facts. Because there was no stipulation to the existence of KRPC violations, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 9,2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.15(a) (2015 Kan. Ct. R. Annot. 556) (safekeeping property); and 1.16(d) (2015 Kan. Ct. R. Annot. 572) (termination of representation).
Upon conclusion of tire hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“10. C.B. retained the respondent to represent him in a criminal case in Riley County District Court. C.B. faced a seven-count complaint which consisted of seven felony sexual offenses, involving three children.
“11. On October 17, 2013, C.B. and the respondent signed a fee agreement that provided, in part:
‘FEES AND EXPENSES: You have agreed to pay the Firm for its legal services and expenses as follows:
• $30,000.00 Feé. The sum of $20,000.00 shall be paid on October 17, 2013. The remaining sum of $10,000.00 shall be paid in monthly payments with the remaining balance to be paid in full on or before April 17, 2014.
• If the matter goes to a jury trial an additional fee will be assessed. Said fee shall be determined at a later date and shall be due and owing 30 days prior to the date set for jury trial.
• These fees do not include any work to be done at the Appellate level or the Kansas Supreme Court.
• These fees do not include any out of pocket expenses paid or incurred by the firm on your behalf. Such expenses include, but are not limited to: fees charged for discovery such as video copy fees and photocopy fees, filing fees for Municipal Appeals, fees for transcripts. Also not included are any fines, court costs, or other fees due to the court.
‘TERMINATION BY CLIENT:. You may terminate this agreement at any time, but you must give the Firm written notice of the termination. If you terminate this agreement, you are still obligated to pay tire fees and expenses accrued to the time of termination. Said fees shall be calculated at tire rate of $250-per hour.’-
“12. C.B. paid the respondent $23,100.00. The respondent did not deposit the funds into his trust account.
“13. On December 19, 2013, the court conducted the preliminary hearing. At the preliminary hearing, the respondent engaged in limited cross-examination of the witnesses.
"14. C.B. was bound over for trial on all 7 counts. Thereafter, on January 6, 2014, the court .arraigned C.B. and scheduled tire matter for trial on April 28, 2014.
“15. On January 27, 2014, the respondent sent C.B. an electronic mail message. The electronic mail message provided: ■'
‘Your case progressed faster than I expected. An unfortunate byproduct is that we have to talk about tire fee for a jury trial sooner than I expected. As you recall our fee agreement calls for a two-stage fee, the first part carrying us up to the point of jury trial. Given that the trial has been set for five days my fee will be $25,000. In addition we will need to have money set aside for investigator and expert witness fees. My estimate is that we will need an additional $10,000 set aside for those fees. Unfortunately due to the timeline imposed on us by the judge we will need to have those fees paid immediately. The witness/investigator fees wiE be placed in our trust account. I wish there was a different way to handle this, but unfortunately we all have to recognize that there is a business aspect to eveiy criminal case. We must handle this fee issue now, because if I need to withdraw from your case it needs to happen soon as to not disrupt the court’s schedule.’
C.B. did not pay the additional fees.
“16. On January 31, 2014, the respondent filed a motion to withdraw as counsel. The respondent provided the following three reasons for the motion to withdraw:
T) Unforeseen circumstances have developed in this case that prevent counsel from effectively representing the accused.
‘2) This is not due to any action or inaction on behalf of the accused, but rather due to circumstances beyond his control.
‘3) Should there be any change in the dates currently scheduled for the trial in this matter, any such delay wiE be attributed to the defendant for purposes of speedy trial calculations.’
On February 10,2014, tire court granted the respondent’s motion to withdraw and appointed substitute counsel.
“17. After withdrawing from representation of C.B., the respondent failed to provide C.B. with an accounting of the advance fee paid. Because the respondent failed to keep complete time records, it was difficult to determine the amount of the unearned fees. In fact, some of the respondent’s time was tracked only by notations made on the respondent’s calendar.
“18. At the hearing on the formal complaint, tire respondent testified that he worked between 70 and 80 hours on C.B.’s case.
‘Q. How many hours can you justify in this particular case?
‘A. If we’re going off of just what [was] on the calendar-and Ill he honest, I haven’t added those up. I mean, I’ve tried to go back as best as I could after talking to Mr. Ambrosio about it to determine what other time I did, what other time I spent on this case. My estimate is that I spent between 70 and 80 hours in total on the case. But, again, that’s — its very artful because I didn’t track it.’
Based upon that testimony, the hearing panel concludes tire respondent worked 70 hours on C.B.’s case, thus, earning $17,500.00. The respondent owes C.B. $5,650 in unearned fees.
“19. Subsequent Counsel filed a motion for a new preliminary hearing, alleging that the respondent was ineffective in his representation of C.B. On April 11, 2014, the court granted the motion for a new preliminary hearing, concluding that there was no apparent tactical or strategic advantage to be gained from such abbreviated cross-examination of the witnesses.’
“Conclusions of Law
“20. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.15 and KRPC 1.16, as detailed below. [Footnote: The deputy disciplinary administrator also alleged that the respondent violated KRPC 1.5. The hearing panel, however, concludes that insufficient evidence was presented to establish a violation of KRPC 1.5.]
“KRPC 1.15
“21. Lawyers must properly safeguard the property of their clients and third persons. Properly safeguarding the property of others necessarily requires lawyers to deposit unearned fees into an attorney trust account. KRPC 1.15(a).
“22. A lawyer may charge a flat fee to a client for a specific task to be undertaken. When the flat fee is paid to the lawyer, it must be deposited into the lawyer’s trust account and the fee cannot be withdrawn until it is earned. Since a flat fee is not earned until completion of the task, the entire flat fee must remain in the lawyer’s trust account until that task is completed unless the lawyer and client otherwise agree to partial withdrawals based upon the amount earned for completion of specified subtasks. KRPC 1.15(a).
“23. The respondent failed to deposit tire flat fee received from C.B. into his trust account. Because the respondent failed to deposit unearned fees into his trust account, the hearing panel concludes the respondent violated KRPC 1.15(a).
“KRPC 1.16
“24. KRPC 1.16 requires lawyers to take certain steps to protect clients after tire representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘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 tire 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.’
“25. Upon termination, a lawyer needs to be in a position to accurately determine the fees earned to date. That requires lawyers to keep time records reflecting actual time spent in the representation. In this case, the respondent failed to keep adequate time records which would indicate the amount of unearned fees. Relying on notations on the respondent’s calendar and on the respondent’s recollection is unacceptable. However, for purposes of this case, it is the only available information.
“26. Based upon the respondent’s testimony, the hearing panel concludes that the respondent violated KRPC 1.16(d) when he failed to return unearned fees to C.B.
“American Bar Association
Standards for Imposing Lawyer Sanctions
“27. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’)- Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyers mental state, the potential or actual injury caused by tire lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“28. Duty Violated. The respondent violated his duty to his client to safeguard property.
“29. Mental State. The respondent negligently violated his duty.
“30. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to his client.
“Aggravating and Mitigating Factors
“31. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“32. Prior Disciplinary Offenses. The respondent has been previously disciplined on two occasions. On October 29, 2009, the respondent entered into a diversion agreement with the disciplinary administrator’s office, case number DAI0632. In that case, tire respondent stipulated that he violated KRPC 1.1. On June 14, 2013, the respondent entered into a second diversion agreement with the disciplinary administrator’s office, case number DA11706. In that case, the respondent stipulated that he violated KRPC 8.4(g).
“33. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct. Throughout the period of representation, tire respondent failed to keep reasonable time records on this and other matters.
“34. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 2001. At the time of the misconduct, tire respondent has been practicing law for approximately 13 years.
“35. Indifference to Making Restitution. The respondent failed to return the unearned fees to C.B.
“36. Mitigating circumstances are any considerations or factors that may justify a reduction in tire degree of discipline to be imposed. In reaching its recommendation for discipline, tire hearing panel, in this case, found the following mitigating circumstances present:
“37. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“38. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary pro cess. Additionally, the respondent admitted the facts that gave rise to the violations.
“39. 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 Manhattan, Kansas. The respondent also enjoys tíre respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
“40. Remoteness of Prior Offenses. The two previous cases, which resulted in participation in die attorney diversion program, appear to be remote in character to the misconduct in this case.
“41. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.13 Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client.
7.3 Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“Recommendation
"42. The disciplinary administrator recommended that the respondent be censured and that the censure be published in the Kansas Reports. The respondent recommended that the hearing panel informally admonish the respondent for the violations.
“43. Accordingly, based upon the findings of fact, conclusions of law, and die Standards listed above, the hearing panel unanimously recommends that the respondent be censured and that the censure be published in the Kansas Reports. In addition, the hearing panel recommends that conditions be attached to the respondents published censure. First, the hearing panel directs the respondent to permit die auditor employed by the disciplinary administrator’s office to conduct a trust account audit within 90 days of the date of this report. Second, the hearing panel directs the respondent to submit written policies regarding time records and fee agreements which are in compliance with the Kansas Rules of Professional Conduct to the disciplinary administrator’s office for approval within 30 days of die date of this report. Finally, the hearing panel directs the respondent to pay his client $5,650 within 30 days of the date of this report.
“44. Costs are assessed against the respondent in an amount to be certified by die Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinaiy panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re 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 also was 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 established the charged misconduct in violation of KRPC 1.15(a) (2015 Kan. Ct. R. Annot. 556) (safekeeping property); and 1.16(d) (2015 Kan. Ct. R. Annot. 572) (termination of representation) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the panel hearing, at which the respondent appeared, the Disciplinary Administrator representative recommended published censure. The respondent requested informal admonition. The Hearing Panel ultimately recommended published censure, but it also “recommend[ed] certain conditions be attached to the respondents published censure.” Despite the permissive, nonbinding tone established by the panel’s use of the word “recommend,” it tiren directed the respondent to perform certain tasks within specified time limits:
“First, the hearing panel directs the respondent to permit the auditor employed by the disciplinary administrators office to conduct a trust account audit within 90 days of the date of this report. Second, the hearing panel directs the respondent to submit written policies regarding time records and fee agreements which are in compliance with the Kansas Rules of Professional Conduct to the disciplinary administrators office for approval within 30 days of the date of tins report. Finally, the hearing panel directs the respondent to pay his client $5,650 within 30 days of the date of this report.”
These directions were not permissive or nonbinding. Rather, they conveyed clearly nonnegotiable requirements of behavior, and the deadlines for that behavior to occur were likely to ripen long before respondents case reached its oral argument date before this court. This is, in fact, exactly what occurred. The panel’s Final Hearing Report bears a date of September 16, 2015, while this court heard oral argument on March 1, 2016 — well after the longest of the panel’s specified time limits — 90 days — expired.
Although neither respondent nor his counsel contested the panel’s “conditions” or the power of the panel to impose or enforce them, by the time the parties reached oral argument before this court, there was evident lack of unanimity on whether respondent had complied to the greatest extent possible. In particular, the representative of the Disciplinary Administrator challenged the nature and completeness of documents respondent had supplied to facilitate the required audit. As a result of what she viewed as less-than-enthusiastic embrace of the panels directions, she sought a sanction more severe than the published censure she had sought at the panel hearing, i.e., a 60-day suspension with a requirement of a reinstatement hearing.
Respondent’s counsel resisted this effort to raise the stakes in this case and implored us to provide definitive guidance, particularly for the criminal defense bar, on how to account for flat fees and other advanced fees within ethical boundaries. Although prompted to do so by questions from several members of the court, respondent’s counsel did not take issue with the panel’s power or authority to order his client to fulfill certain requirements pending oral argument before this court; nor did he challenge the appropriateness of the Disciplinary Administrator’s office seeking more serious sanctions at oral argument because of perceived deficiencies in respondents’ compliance with interim panel orders. Also in response to questions from the bench, the representative of the Disciplinaiy Administrator stated that she had relied on her interpretation of several earlier disciplinaiy cases for the proposition that a hearing panel was empowered to suggest or require a course of action to be followed by a respondent between the panel hearing and Supreme Court oral argument and that this court would consider the respondent’s resulting behavior in deciding discipline. She also appeared to favor more extensive ethical guidance from this court for lawyers who accepted flat or other advanced fees.
We decline counsels’ invitation to issue what we believe would be an advisory opinion on ethical accounting for flat fees and other advanced fees. Having adopted the panel’s findings and conclusions, we have already done what is necessary on that subject in this case. We must, however, address the question of whether a disciplinary hearing panel may issue mandatory directives to respondents — directives to be ignored or treated casually at their peril. Certain of our prior cases may have been less than clear on this point, and on whether the court will look favorably upon the Disciplinary Administrator’s recommendation of a more severe sanction as a result of what it regards as noncompliance with such directives. See In re Barker, 299 Kan. 158, 172-74, 321 P.3d 767 (2014) (court adopts panel’s recommendation of 6-month suspension; agrees with certain of panel’s suggested conditions, rejects another because of post-hearing developments); In re Lee, 287 Kan. 676, 682-83, 198 P.3d 140 (2008) (panel agrees with joint recommendation of published censure but attaches conditions; Disciplinary Administrator notes compliance with conditions at oral argument; court adopts panel’s recommendation with suggested conditions); In re Docking, 282 Kan. 715, 147 P.3d 139 (2006) (panel’s recommendation for' 90-day suspension followed after respondent at least partially complied with interim restitution recommendation of panel). It is time for a course clarification, if not correction.
Simply put, our current Kansas Supreme Court Rules do not permit a disciplinary hearing panel to impose discipline or to require or enforce any conditions attached it — not between a panel hearing and oral argument to this court or at any other time. See Supreme Court Rule 211(f). The rules plainly endow hearing panels with the power to recommend sanctions for KRPC violations; imposition of discipline is left to this court alone, which is free to reject recommendations from the panel or from the Disciplinary Administrator. See Supreme Court Rule 212(f). If members of the panel or the Disciplinary Administrator believe that a respondent has engaged in additional behavior meriting discipline in the period between issuance of the panels Final Hearing Report and oral argument before this court, then any responsive action must safeguard the respondents right to due process. For example, the Disciplinary Administrators office could file a motion to remand the current case to the panel for further factfinding on the questioned behavior or it could file an entirely new Formal Complaint. If such a procedure is not followed, then we are likely to end up with precisely the kind of situation we face here: an oral argument in which counsel cannot agree on the new, potentially critical facts. Such a dispute is not one an appellate court can reliably resolve. We also note a further complicating factor in this particular controversy: Both sides appear to have overread at least one of the panels conditions/directives. The second demands production of policies on fee agreements, not the agreements themselves.
All of this being said, we do not mean to discourage respondents from taking corrective or rehabilitative actions between their disciplinary hearings and their oral arguments in the Supreme Court. Indeed, such actions may appropriately be considered by us when we decide discipline, because they may be indicative of a respondents acceptance of responsibility and/or remorse. We have previously remarked that respondents should keep us and the Disciplinary Administrator s office informed of any such actions by way of affidavit submitted before oral argument. See In re Peloquin, 301 Kan. 1, 9-12, 338 P.3d 568 (2014) (Disciplinary Administrator seeks indefinite suspension because of respondents failure to comply with panels interim recommendations; panel had rejected unworkable probation plan, urged 3-month suspension; court 'states “respondent would have been well served to have filed an affidavit” confirming psychological evaluation after panel hearing); see also In re Freed, 294 Kan. 655, 661-62, 279 P.3d 118 (2012) (panel recommends public censure plus conditions, including psychological evaluation of respondent; respondents late confirmation of evaluation, submission of revised, suggested probation plan underscore misconduct leading to complaint, counsel suspension over published censure). And we note that such a procedure is required in a case in which a probation plan with mandatory terms and conditions is in place. See Kansas Supreme Court Rule 211(g)(5). This is not a probation case; respondent has not sought probation, and the Disciplinary Administrator has not suggested it. We do not elect to impose it sua sponte here. See In re Florez, 298 Kan. 811, 819, 316 P.3d 755 (2014). The bottom line is that a lack of compulsion of corrective or rehabilitative actions does not necessarily equate to a lack of influence on our decision making.
We also hasten to add that there is one type of situation in which the court will certainly consider post-disciplinary hearing misbehavior by a respondent without additional factfinding in a remanded or new disciplinary proceeding. That situation arises when a respondent has been provided notice of the oral argument setting for his or her case and nevertheless fails to appear. In such a case, the violation of KRPC has occurred before the eyes of the court, see Kansas Supreme Court Rule 212(d), (e)(5) (respondent shall appear before the court), and no further factfinding below is necessary to preserve the respondents right to due process. The court may impose discipline more severe &an that recommended by the panel or Disciplinary Administrator as a result of the new violation, with or without a recommendation to do so. See In re Barker, 302 Kan. 156, 163, 351 P.3d 1256 (2015) (citing In re Batt, 296 Kan. 395, [405], 294 P.3d 241 [2013]) (‘When a respondent fails to appear before this court when facing recommendations of indefinite suspension, a sanction greater than that recommended by the Disciplinary Administrator or panel, even up to disbarment, may be warranted. Certainly, the lack of an appearance at the hearing before this court qualifies as an additional aggravator of these circumstances under consideration.”).
In this case, for all of the reasons just reviewed, we are not willing to impose discipline more severe than published censure. The hearing panel was not empowered to require respondent to engage in specific behaviors between issuance of the Final Hearing Report and oral argument before this court; and the more severe recommendation from the Disciplinary Administrators office that arose out of the parties’ interpretation of tire panel’s requirements and disagreement over the respondent’s compliance is rejected.
Conclusion and Discipline
It Is Therefore Ordered that John W. Thurston be and is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2015 Kan. Ct. R. Annot. 293).
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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McAnany, J.:
The State of Kansas appeals the trial court’s decision to grant Michael Herbison a 6-month reduction in his sentence for attempted manufacture of methamphetamine pursuant to K.S.A. 21-3301(d). Having found that the 6-month reduction in Herbison’s sentence is mandated by the decision of our Supreme Court in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), we affirm.
Herbison was convicted of attempted manufacture of methamphetamine in violation of K.S.A. 65-4159 and K.S.A. 21-3301. He was also convicted of possession of drug paraphernalia with the intent to manufacture a controlled substance and possession of methamphetamine. He received concurrent sentences of 11 months on these latter two convictions. Because of the application of our Supreme Court’s decision in McAdam to Herbison’s conviction for attempted manufacture of methamphetamine, he received a sentence of 15 months pursuant to a statute identical to K.S.A. 65-4159 which provides a lesser penalty, K.S.A. 65-4161.
Herbison later filed a motion to correct his 15-month sentence, which he claimed was illegal. He argued he was entitied to a 6-month reduction in this sentence pursuant to K.S.A. 21-3301(d). The court sustained the motion and reduced Herbison’s sentence by 6 months. The State now appeals.
Since this appeal involves questions of statutory interpretation, our review is de novo. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). Highly summarized, the contentions of the parties are as follows. The State argues that the trial court erred by ignoring subsection (c) of K.S.A. 65-4159, which prohibits application of the 6-month sentence reduction provided for in K.S.A. 21-3301(d). Herbison, on the other hand, argues that McAdam required the trial court to sentence him under K.S.A. 65-4161(a) and not K.S.A. 65-4159(b) and (c) because K.S.A. 65-4159 and K.S.A. 65-4161 prohibit the same conduct and the statute with the lesser penalty provision controls. Since K.S.A. 65-4161, the statute with the lesser penalty, does not prohibit the application of K.S.A. 21-3301(d), he is entitled to the 6-month reduction in his sentence.
We are duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). The McAdam decision clearly controls. Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision. McAdam, 277 Kan. at 146 (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989]). We apply McAdam to Herbison’s conviction as follows:
(1) Herbison was convicted of an attempt to manufacture methamphetamine under K.S.A. 65-4159.
(2) Pursuant to K.S.A. 21-3301(d), a defendant who is convicted of an attempt to commit a drug felony is entitled to a 6-month reduction in the sentence imposed.
(3) However, the statute under which Herbison was convicted, K.S.A. 65-4159, provides in subsection (c) that K.S.A. 21-3301(d) does not apply to a defendant convicted under this statute of attempting to manufacture a controlled substance.
(4) Although Herbison was convicted under K.S.A. 65-4159 for attempting to manufacture methamphetamine, McAdam requires that he be sentenced under the lesser penalty provision of K.S.A. 65-4161.
(5) The penalty provisions of K.S.A. 65-4161 do not bar application of the 6-month sentence-reduction provision of K.S.A. 21-3301(d).
(6) Since the issue under McAdam is one of sentencing, Her-bison, who falls within the McAdam paradigm, must be sentenced under the lesser penalty provisions of K.S.A. 65-4161, under which he is entitled to the 6-month reduction in his sentence provided for in K.S.A. 21-3301(d).
(7) Thus, the district court did not err in sustaining his motion and reducing his sentence by 6 months.
The State malees various arguments in favor of a contrary holding. First, the State argues that the trial court lacked jurisdiction to sentence Herbison under any statute other than K.S.A. 65-4159 because that was the crime that was charged in the complaint. First, it is apparent that McAdam disposes of this argument since the issue is one of sentencing which McAdam controls. Second, the trial court correctly noted that Herbison was specifically charged in the complaint with violating K.S.A. 21-3301, the statute which provides for the 6-month reduction in sentence. Thus, the trial court had jurisdiction to grant relief to Herbison on his motion.
Next, the State argues that Herbison’s position is that McAdam effectively invalidated K.S.A. 65-4159, notwithstanding the clear provisions of K.S.A. 65-4140. The State argues, based upon K.S.A. 65-4140, that the determination that the defendant in McAdam must be sentenced to the lesser penalty “does not make the other provisions of the statute invalid.” It is unclear how the State would have us apply K.S.A. 65-4140, which declares:
“If any provision of this act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”
McAdam teaches us that the statute with the lesser penalty controls. The State fails to suggest anyway to prevent the application of the 6-month sentence reduction provisions of K.S.A. 21-3301 without doing violence to McAdam.
Finally, the State argues that the district court’s interpretation of the statues in question violated the clear intent of the legislature. It argues that K.S.A. 65-4159 is a more specific crime than K.S.A. 65-4161 and the terms of the more specific statute control. This argument, while persuasive before this court in the initial appeal of McAdam, 31 Kan. App. 2d at 446-47, was rejected on review by our Supreme Court. McAdam is settled law, and we are bound by it.
Affirmed. | [
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Greene, J.:
Following the district court’s termination of his parental rights, the natural father of D.I.G. and P.M.G. appeals, arguing exclusively that the district court erred in failing to hold an evidentiary hearing on the issue of temporary custody. We dismiss the appeal, concluding that any challenge to the termination of parental rights has been abandoned and that any challenge to the order of temporary custody is untimely.
These proceedings were instituted upon the State’s filing of a Child in Need of Care (CINC) petition in March 2003, alleging that both D.I.G. and P.M.G. were children in need of care. The petition alleged that the natural mother had abandoned these children and that the natural father was in jail and not expected to be released until July 2004, having been convicted of theft, domestic violence, and possession of cocaine.
On March 28, 2003, the district court held a temporary custody hearing. Mother voluntarily waived her right to an evidentiary hearing, but there is no indication whether father did so as well. The court held that it was in the best interest of the children to remain in the custody of SRS. The order of temporary custody was not appealed.
In June 2004, the court conducted a hearing on the State’s motion to terminate parental rights. Father appeared in person and through counsel, but he admitted that he had not complied with the court orders toward the reintegration of the children into the parental home. The court terminated father’s parental rights, citing K.S.A. 38-1583(b)(8), (c)(1), (c)(2), and (c)(3).
Father’s notice of appeal designates only the June 2004 order terminating parental rights as the judgment from which he appeals, but no challenge has been made to any aspect of the court’s termination of parental rights. Instead, father challenges exclusively the order of temporary custody entered in March 2003, arguing that his due process rights were violated when he was not granted an evidentiary hearing on this issue. Because Father briefs no issue regarding the termination of his parental rights, we deem any such issues abandoned. See Goldbarth v. Kansas State Bd. of Regents, 269 Kan. 881, 884, 9 P.3d 1251 (2000).
Although no challenge to our appellate jurisdiction has been made by the State, we have a duty to question jurisdiction on our own initiative and dismiss an appeal if the record reveals a lack of jurisdiction. Cole v. Mayans, 276 Kan. 866, 870, 80 P.3d 384 (2003). Whether jurisdiction exists is a question of law over which this court has unlimited review. Summitt v. Summitt, 31 Kan. App. 2d 812, Syl. ¶ 1, 74 P.3d 584, rev. denied 277 Kan. 928 (2003). “The right to appeal is entirely 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. [Citation omitted.]” Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003).
K.S.A. 38-1591(a) provides: “An appeal may be taken by any interested party from any adjudication, disposition, termination of parental rights or order of temporary custody in any proceedings pursuant to this code.” (Emphasis added.) The notice of appeal must be filed within 30 days from the entry of judgment. K.S.A. 38-1591(c); K.S.A. 2004 Supp. 60-2103(a). The judgment appealed from must be designated in the notice of appeal. K.S.A. 2004 Supp. 60-2103(b). Failure to timely appeal a final order divests this court of jurisdiction to review that judgment. In re Estate of Williams, 238 Kan. 651, 654-56, 714 P.2d 948 (1986) (stating that the court has no jurisdiction to determine issues raised in an appeal where notice was not timely filed).
Here, the temporary custody hearing was held on March 28, 2003. The court filed the signed temporary custody journal entry on April 1,2003, making it a final appealable order. See In re Estate of Williams, 238 Kan. at 655. Accordingly, Father had 30 days from April 1, 2003, to appeal the district court’s determination of temporary custody. K.S.A. 38-1591(a), (c); K.S.A. 2004 Supp. 60-2103. Father’s notice of appeal filed August 9, 2004, was untimely with regard to the order of temporary custody. Moreover, Father’s notice of appeal only designates the journal entry of June 25, 2004, terminating his parental rights, as the judgment from which he appeals.
It is an 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). Because Father failed to timely appeal the order of temporary custody, we lack jurisdiction to consider Father’s sole argument on appeal.
Dismissed. | [
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Caplinger, J.:
In this appeal, we are asked to interpret the scope of an agent’s obligation under K.S.A. 2004 Supp. 58-30,106(d)(4) to disclose contradictory information from a third-party inspection report to the potential buyer of residential real estate. The buyer, Kelly Fitzmorris, appeals from the district court’s ruling denying her motion for summary judgment and granting summary judgment to the seller’s agent, Larry Marshall, d/b/a Marshall Auction and Realty. We reverse and remand, finding as a matter of law that Marshall was aware of material information in a prior inspection report which contradicted information in a termite inspection report provided to Fitzmorris and Marshall’s failure to disclose this information was a violation of K.S.A. 2004 Supp. 58-30,106(d)(4).
The inspection report which is at the heart of this appeal was requested by potential buyers who are not parties to this appeal. Those buyers, Roy and Laura Harkrader, entered into a contract with defendant Carolyn Pickell to purchase Pickell’s residence in Fredonia for $35,000. Prior to closing, the Harkraders hired Morrow Construction to inspect the home. Morrow Construction provided the Harkraders a written report (Morrow report) stating:
“This is an inspection bid.
“Southwest comer of foundation is leaning out IV2 [inches]. Sill plate on center support beam is destroyed by termites on outer perimeter of the house. Sill plates [are] the same as center ones. Approx. 30 2x8 floor joists are destroyed by termites. Some sub flooring damaged.
“Estimated cost to repair between 18,000.00 to 25,000.00.
“Live termites [were] not found.”
The Harkraders voided the real estate contract based on the termite damage revealed by the Morrow report. A copy of the Morrow report was provided to Picltell’s agent, Larry Marshall. Marshall then provided Piclcell with a copy of the Morrow report, informed her that the information in the report needed to be disclosed to any future potential buyers, and suggested getting another reasonable bid for tire repair of the termite damage.
Pickell then hired Victor Neese of Sunrise Construction to inspect the termite damage and estimate repairs. Neese submitted a written report (Neese report) stating the home “has had damage to the floor jointes [sic] due to termites the damage does not seem to be active — that is the only thing that is visible — the cost to repair the said property will be $5,000 or less.”
Subsequently, Fitzmorris looked at the property. Marshall did not advise Fitzmorris of the termite damage when she first viewed the property. However, Fitzmorris learned independently from an individual who lived near the home that the floors in the home had sustained termite damage. When Fitzmorris then asked Marshall for a key so she could look under the home, Marshall advised her of the damage to the floors and of Neese’s $5,000 repair estimate. However, Marshall did not inform Fitzmorris of the Morrow report or its substantially higher repair estimate of $18,000 to $25,000. Fitzmorris’ boyfriend and her boyfriend’s father looked under the house at the termite damage.
During contract negotiations, Fitzmorris was given the choice of either paying $35,000 for the house and having Pickell repair the termite damage to the floors or receiving a $5,000 price reduction while taking responsibility for the repairs herself. Ultimately, the parties agreed on a purchase price of $29,500, with the understanding that Fitzmorris was responsible for repairing the termite damage to the floors.
The real estate agreement required Fitzmorris to have the “accessible areas of the property visibly inspected by a licensed pest control firm to determine whether or not there are termites.” Prior to closing, Fitzmorris had defendant D & M Pest Control (D & M) conduct this termite inspection. D & M issued a report stating that the property “[h]as had previous damage from termites on floor joices [sic],” but otherwise found no visible evidence of termite infestation. The real estate transaction closed in October 2002.
Shortly thereafter, Fitzmorris began redecorating the home and removed some paneling in the house during that process. She discovered substantial termite damage to the walls and eventually found in the ceilings and rafters. On November 1,2002, Fitzmorris contacted Marshall and “told him the house was completely eaten up.” Marshall stated he would need to speak with Pickell. Several days later, Marshall telephoned Fitzmorris and advised her that because Fitzmorris bought the house “as is,” nothing could be done to rectify the situation.
Fitzmorris brought suit against D & M, Marshall, and Pickell alleging fraudulent concealment and negligent misrepresentation against Marshall, fraud and negligent misrepresentation against Pickell, and negligence against D & M. The defendants each filed separate motions for summary judgment. Fitzmorris filed a motion for partial summary judgment, seeking judgment only against Marshall on her claim of fraudulent concealment. Fitzmorris argued Marshall fraudulently concealed the Morrow report, that the report was “material,” and that had Marshall disclosed the report, Fitzmorris would have known (1) the report was the basis for the voiding of the contract for structural damage by another buyer and (2) the structural damage was estimated to cost nearly as much as the home itself.
The district court granted summary judgment in favor of all defendants. Fitzmorris appeals only from the district court’s award of summary judgment in favor of Marshall.
The sole issue presented in this appeal is whether the district court, in granting summary judgment to Marshall, erred by concluding that Marshall, as Pickell’s agent, had no duty under K.S.A. 2004 Supp. 58-30,106(d)(4) to disclose the Morrow report to Fitzmorris.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to tire conclusive issues in the case. On appeal, [the reviewing court must] apply the same rules and where . . . reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Responsibility of sellers agent to disclose defects
The Brokerage Relationships in Real Estate Transactions Act (BRETA), K.S.A. 2004 Supp. 58-30,101 et seq., defines the responsibility of real estate licensees with respect to disclosures of defects. K.S.A. 2004 Supp. 58-30,106 sets out the minimum obligations of seller’s and landlord’s agents. K.S.A. 2004 Supp. 58-30,106(d)(3) discusses the obligations of seller’s agents to provide written reports:
“Except as provided in subsection (d)(4), a seller’s or landlord’s agent is not required to disclose to a client or customer information relating to the physical condition of the property if a written report regarding the physical condition of the property has been prepared by a qualified third party and provided to the client or customer.”
Here, the seller’s agent, Marshall, provided Fitzmorris with only one of the two written inspection reports detailing the condition of the property. Marshall argues he thus complied with his obligation under subsection (d)(3) to provide “a written report.” As Fitzmorris accurately points out, however, the language of K.S.A. 2004 Supp. 58-30,106(d)(3) is qualified by the phrase: “[ejxcept as provided in subsection (d)(4).”
K.S.A. 2004 Supp. 58-30,106(d)(4) provides: “A seller’s or landlord’s agent shall disclose to the client or customer any facts actually known by the licensee that were omitted from or contradict any information included in a written report described in subsection (d)(3).” (Emphasis added.) Fitzmorris argues that because Marshall knew of the Morrow report and was aware that information contained in that report was omitted from and contradicted information contained in the Neese report, Marshall was required to disclose the Morrow report pursuant to K.S.A. 2004 Supp. 58-30,106(d)(4).
Interpretation of a statute is a question of law over which an appellate court exercises unlimited review. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). “ Tn construing statutes and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible.’ [Citation omitted.]” State v. Huff, 277 Kan. 195, 203, 83 P.3d 206 (2004).
A literal reading of K.S.A. 2004 Supp. 58-30,106(d)(4) suggests that any fact, regardless of materiality, must be disclosed by a seller’s agent to a customer, so long as such fact is not mentioned in a written report prepared by a qualified third party. However, both parties agree that we should import into K.S.A. 2004 Supp. 58-30,106(d)(4) a materiality requirement such as that included in K.S.A. 2004 Supp. 58-30,106(d)(1), which provides: “A seller’s or landlord’s agent owes no duty or obligation to a customer, except that a licensee shall disclose to any customer all adverse material facts actually known by tire licensee.” (Emphasis added.)
We agree with the parties that subsections (d)(3) and (d)(4) should import the materiality requirement of K.S.A. 2004 Supp. 58-30,106(d)(1). Without such a requirement, a seller’s obligation would be unlimited, contrary to the intent and language of the statute. Thus, we must consider whether tire Morrow report was a “material” fact necessitating disclosure under K.S.A. 2004 Supp. 58-30,106(d)(4).
A matter is material if it is “one to which a reasonable person would attach importance in the determination of his or her choice of action in the transaction in question.” Horsch v. Terminix Int’l Co., 19 Kan. App. 2d 134, 138, 865 P.2d 1044 (1993), rev. denied 254 Kan. 1007 (1994).
Not surprisingly, the parties’ views regarding materiality differ substantially. Fitzmorris argues that a repair estimate of $18,000 to $25,000 for termite damage to a house which was listed for sale at $35,000 is clearly material and should have been disclosed. On the other hand, Marshall suggests that the statute does not anticipate disclosure of differing amounts of damages, but only differing descriptions as to tire physical condition of the premises. Marshall argues the Morrow report was not materially different than the Neese report with respect to its description of the damage and thus did not need to be disclosed to Fitzmorris. The district court agreed with Marshall, finding: “[I]t is the damage to the property that is relevant, not what one contractor might charge to repair it versus another contractor.”
Initially, we note that we do not necessarily agree that the description of the damage contained in tire Morrow report did not materially differ from that contained in the Neese report. The Neese report referred only generally to damage to an unspecified number of floor joists, while the Morrow report indicated damage to: (1) the sill plate on the center support beam, which was destroyed by termites; (2) the corner of the foundation, which was leaning out 11/2 inches; (3) the sub flooring; and (4) approximately 30 floor joists. This more extensive damage description in the Morrow report is particularly significant in light of the much higher repair estimate of $18,000 to $25,000, as opposed to the $5,000 or less repair estimate contained in the Neese report.
In any event, we do not believe K.S.A. 2004 Supp. 58-30,106(d)(4) limits the disclosure requirement to contradictory or omitted information regarding descriptions of damage as opposed to the estimated costs to repair the damage. Rather, subsection (d)(4) requires the sellers agent to disclose any facts actually known by the licensee that were omitted from or contradict any information included in a written report described in subsection (d)(3). Moreover, when an expert report provides both a description and an estimated cost to repair the damage, as the Morrow report did here, the amount of damage is intrinsically tied to the description and extent of damages. See, e.g., Horsch 19 Kan. App. 2d 134 (prior termite damage in the amount of $5,000 to floor joists, bathroom studs, a window, and the roof met the requirement of materiality as a reasonable prospective buyer would want to know this information before purchasing home for $50,000).
Further, Marshall misapplies the materiality requirement. Marshall focuses upon Fitzmorris’ testimony regarding the nature of the termite damage and the fact that she was aware at the time she purchased the house of floor damage but was unaware of termite damage to the walls, the ceding, and the rafters. Marshall argues the Morrow report could not have been material to Fitzmorris’ decision because the Morrow report did not detail damage to walls, ceding, and rafters. Marshall ¿so suggests that any estimate of damage is simply that, an estimate, and has no significance or impact other than as an estimate. Marshall’s view is best exemplified in the foflowing statement contained in his response to Fitzmorris’ summary judgment motion: “All that this Morrow estimate infers is that if [Fitzmoms] had hired Morrow to repair the floor damage she would have ended up paying thousands of dollars.more to repair tire damage than she would have . . . paid if Victor Neese had repaired the exact same damage.”
However, in considering materiality in the context of the facts before us, we do not consider whether tire contradictory or omitted information contained in tire Morrow report can be explained, rationalized, or disputed but, rather, whether a reasonable person would have considered the information contained in the report important in determining whether to purchase the property.
We are guided in that determination by the analogous case of Lynn v. Taylor, 7 Kan. App. 2d 369, 642 P.2d 131, rev. denied 231 Kan. 801 (1982). There, two termite inspections were conducted prior to the sale of a home. The first inspector refused to certify the house, finding prior termite damage and recommending treatment. The second inspector merely discovered evidence of prior termite treatment. Only the second inspection was provided to the purchaser of the house.
The seller in Lynn argued the first report was not material because there was no active infestation and treatment would not have repaired tire existing damage or revealed the extent of that damage. This court, noting “evidence of earlier treatment would certainly not have the same import as evidence of previous damage,” concluded the withheld information referencing prior termite damage was material. 7 Kan. App. 2d at 372. The court pointed out that “if [the buyer] had the opportunity to speak to [the first inspector] or hear his report of tire inspection, it may well have influenced [the buyer s] decision to buy the house.” 7 Kan. App. 2d. at 372.
Similarly, we conclude here that a reasonable person, in determining whether to purchase the home, may well have attached importance to the more extensive description of the termite damage and the much higher repair estimate contained in tire Morrow report. This is particularly true in light of the proportionality of the repair estimate to the listed price of the home and the fact that the house failed the prior structural inspection, causing the previous buyers to void their purchase contract.
Because the seller s agent was aware of this material information and was aware that this information contradicted information contained in the written report provided to the buyer, the seller’s agent was required to disclose the information pursuant to K.S.A. 2004 Supp. 58-30,106(d) (4).
Accordingly, we hold the district court erred in granting Marshall summary judgment and denying summary judgment to Fitzmorris on her claim of fraudulent concealment. We reverse and remand with directions to the district court to grant summary judgment to Fitzmorris on her claim of fraudulent concealment and for further proceedings consistent therewith.
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Rulon, C.J.:
Jack L. Goldsmith appeals the district court’s summary dismissal of the motion for DNA testing, contending the district court erred in applying the 1-year hmitation of K.S.A. 2004 Supp. 60-1507(f) to motions brought under K.S.A. 2004 Supp. 21-2512. We reverse and remand for further proceedings.
Underlying Facts
The long and sordid history of this case does not need to be recounted here. However, a brief overview of the procedural history of this case may prove illuminating.
In October 1997, Goldsmith was charged with aggravated kidnapping, aggravated burglary, rape, and aggravated criminal sodomy. In the course of tire investigation of these alleged crimes, the State obtained a substantial amount of physical evidence, including blood and saliva samples and bodily fluid swabs from Goldsmith and the victim. Subsequent testing of selected items revealed no seminal fluid or blood which connected Goldsmith to the crime or the victim to items discovered in Goldsmith’s residence. A stipulation to this effect was read to the jury. Nevertheless, the jury convicted Goldsmith of all charged crimes.
Following sentencing, Goldsmith filed a motion for DNA testing. In the motion, Goldsmith alleged that physical evidence was seized which the laboratories of the Kansas Bureau of Investigation were unable to analyze but which the Federal Bureau of Investigation could analyze. Goldsmith alleged such physical evidence, when analyzed, would prove exculpatory. The district court summarily denied Goldsmith's request for DNA testing without explanation.
In his direct appeal to this court, Goldsmith raised the issue of DNA testing. This court did not grant any relief because Goldsmith had not identified the district court’s ruling with respect to the DNA testing in his notice of appeal. See State v. Goldsmith, No. 82,065, unpublished opinion filed April 28, 2000, slip op. at 6. Our Supreme Court denied review on July 13, 2000.
On August 21, 2000, Goldsmith filed another 1507 motion. In this motion a claim for DNA testing was again made. In addition, a motion for DNA testing was filed. The district court denied Goldsmith’s requested relief for DNA testing, citing Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494, rev. denied 258 Kan. 859 (1995), and finding the State’s evidence of guilt was not weak. Goldsmith again appealed this decision to this court. Affirming the summary dismissal of Goldsmith’s claims, this court said of the DNA testing issue:
“In his direct appeal, this court addressed Goldsmith’s claim that there was insufficient evidence for his conviction, as well as his claim for ineffective assistance of counsel and his request for DNA testing. This court affirmed Goldsmith’s convictions, finding that the evidence in support of the convictions was overwhelming and that Goldsmith’s trial counsel was effective. In affirming the trial court’s denial of Goldsmith’s motion for DNA testing, this court found that Goldsmith had acquiesced in his trial counsel’s strategy to emphasize the State’s lack of physical evidence connecting him to the crime.
“Supreme Court Rule 183(d) (2001 Kan. Ct. R. Annot. 210) provides that the court ‘shall not entertain a second or successive motion for relief on behalf of the same prisoner’ when the same ground(s) for relief was determined adversely to the applicant in a prior application, the prior determination was on the merits, and the ends of justice would not be served by reaching the merits on subsequent application.
“The trial court and this court have already considered and rejected Goldsmith’s motion for DNA testing. The prior determination was made on the merits, and the ends of justice would not be served by reaching the merits again. Goldsmith raises several issues in his analysis of the trial court’s denial of his current motion for DNA testing. However, Goldsmith fails to address the fundamental issue of why the appellate court should consider the issue again in light of Supreme Court Rule 183(d).
“Goldsmith’s argument for DNA testing relies on Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494 (1995). This case was published nearly 3 years before Goldsmith’s crimes were committed. Thus, he could have argued Mebane before now. Accordingly, tire trial court properly denied Goldsmith’s motion for DNA testing.” Goldsmith v. State, No. 86,692, unpublished opinion filed November 27, 2002, slip op. at 2-4.
Once again, our Supreme Court denied Goldsmith’s petition for review of this court’s decision.
Finally, Goldsmith filed the current action requesting DNA testing under K.S.A. 2004 Supp. 21-2512, on June 23, 2004. Treating the request as a motion brought under K.S.A. 2004 Supp. 60-1507, the district court summarily denied the motion, finding it was not timely filed within 1 year of the Kansas Supreme Court’s denial of Goldsmith’s petition for review in his last 1507 proceeding as required in K.S.A. 2004 Supp. 60-1507(f).
Right to DNA Testing
The sole issue raised in this appeal concerns the district court’s dismissal of Goldsmith’s request for DNA testing under 21-2512 as untimely under 60-1507. This issue presents a question of statutory interpretation, which is subject to unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
“(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 (deoxyribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in tire 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.
“(b)(1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.
“(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.
“(d) The cost of DNA testing ordered under subsection (c) shall be borne by the state or the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is not indigent and possesses the means to pay.
“(e) The court may at any time appoint counsel for an indigent applicant under this section.
“(f)(1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.
(2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves die interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside tire judgment;
(ii) discharging tire petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether drere is a substantial question of innocence. If the petitioner proves by a preponderance of tire evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).
“(g) Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.” K.S.A. 2004 Supp. 21-2512.
The scope of this statute has already been addressed on two separate occasions by our Supreme Court. See State v. Denney, 278 Kan. 643, Syl. ¶ 2, 101 P.3d 1257 (2004) (extending the scope of the statute to include aggravated criminal sodomy); Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). In Bruner, the movant had been convicted of first-degree murder and filed a 1507 motion, seeking DNA testing as well as alleging a number of trial errors. The Bruner court broadly construed Bruner’s request for DNA testing as a claim brought under K.S.A. 2004 Supp. 21-2512. See Bruner, 277 Kan. at 605.
Under the plain language of K.S.A. 2004 Supp. 21-2512(a), an individual who has been convicted of first-degree murder or rape may seek DNA testing as provided by the statute at any time following the conviction. The Bruner court reasoned that the exceptional circumstance requirement imposed by Rule 183(c)(3) (2005 Kan. Ct. R. Annot. 228) for motions brought under 60-1507 was not applicable.
Following similar reasoning, nothing within K.S.A. 2004 Supp. 21-2512 imposes a 1-year limitation on claims for DNA testing. Therefore, the district court erred in dismissing Goldsmith’s request for DNA testing under K.S.A. 2004 Supp. 60-1507(f). The State acknowledges that, under Bruner, the district court should not have dismissed Goldsmith’s request for DNA testing because of the 1-year limitations period in K.S.A. 2004 Supp. 60-1507(f). Nevertheless, the State argues the district court properly dismissed the request for DNA testing because the physical evidence seized in the investigation of the crime revealed no biological materials which connected Goldsmith in any manner to the crime. As a result, the State contends the defendant cannot establish that the physical evidence seized during the criminal investigation will produce any biological materials, which, in turn, prevents the defendant from establishing the existence of noncumulative, exculpatory evidence, warranting DNA testing. See K.S.A. 2004 Supp. 21-2512(c).
If a trial court reached a right and just result, the mere fact that it based its decision on erroneous reasoning does not mandate reversal for further proceedings. Rather, the reason given by the district court for its ruling is immaterial if the correct result was obtained by the ruling. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004). Nevertheless, from a review of the record on appeal, it is impossible for this court to conclude the district court reached the correct result in this case.
In Bruner, our Supreme Court noted that Bruner’s conviction had not rested on physical evidence obtained from biological material but on circumstantial evidence. Yet, the court noted that law enforcement had collected biological samples of the victim, even though the evidence was not used against the defendant at trial. The court then opined:
“K.S.A. 2003 Supp. 21-2512 does not require the prisoner to mal® specific allegations regarding how tire DNA testing would produce noncumulative, exculpatory evidence. The statute merely requires the prisoner to allege that the evidence is related to the investigation or prosecution of his or her conviction, that the State has possession or constructive possession of the evidence, and that tire evidence was not previously subjected to DNA testing or that it could be tested using new DNA testing techniques. K.S.A. 2003 Supp. 21~2512(a).” Bruner, 277 Kan. at 606.
The Bruner court then determined that Bruner’s allegations merited a hearing and the appointment of counsel. The danger of Bruner’s allegations leading to a mere “fishing expedition” was limited by the requirements of the statute. 277 Kan. at 606.
Here, the State articulates no basis for a different result in this case. Admittedly, on the few biological items tested by the State, evidence was admitted indicating that no seminal fluid or blood tied the defendant to the crime, and the jury subsequently convicted the defendant from circumstantial evidence of guilt. However, a vast amount of physical evidence was seized by the police in the underlying criminal investigation. The statute clearly provides the right to DNA testing of biological material that was not previously subjected to DNA testing, was related to the criminal investigation, and is currently in actual or constructive possession of the State. K.S.A. 2004 Supp. 21-2512(a).
As in Bruner, Goldsmith has alleged throughout the course of his postconviction proceedings that further DNA testing of the hair samples, the victim’s underwear, and many other pieces of physical evidence would produce exculpatory evidence. As in Bruner, these allegations at least warranted a hearing and the appointment of counsel. The district court’s summary dismissal of Goldsmith’s request cannot be deemed correct for the wrong reason.
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The opinion of the court was delivered by
Rosen, J.:
On the night of October 20,2012,15-year-old Deaar-ion Potts drove three acquaintances around Kansas City, Kansas, in a car that Potts stole earlier that day. During the excursion, Potts drove up behind a car and his three passengers proceeded to fire weapons at the vehicle, killing Ramon Bradley, one of the car’s four occupants. As a result, Potts was charged with felony murder, criminal discharge of a firearm at an occupied vehicle, and burglary. After the district court authorized Potts to stand trial as an adult, a jury found him guilty of all three crimes. The district court imposed a controlling sentence of life without the possibility of parole for 20 years.
On appeal, Potts raises several arguments. First, he argues that because it was possible Bradley sustained his fatal gunshot wound during the initial moments of the shooting — when Potts claims he was not intending to aid his companions with the shooting — the State presented insufficient evidence to convict him of either felony murder or criminal discharge of a firearm. Potts also argues that in order for tire State to have convicted him of burglary, it had to present evidence that he intended to steal something from within the car he broke into and stole. Because his conviction for burglary was based on his act of breaking into the car that he stole, he contends that his conviction must be reversed. Additionally, Potts argues that (1) his statements to police should have been suppressed because they were involuntary; (2) the district courts jury instruction on aiding and abetting was erroneous; (3) cumulative error deprived him of a fair trial; (4) the district court unconstitutionally enhanced his sentence by making factual findings that authorized the State to prosecute him as an adult; and (5) the district court incorrectly noted within the journal entiy of judgment that Potts was subject to lifetime postrelease supervision for all his convictions.
We reject his arguments and affirm his convictions and sentence. However, we conclude that while the district court properly sentenced Potts to lifetime parole for felony murder, the journal entry of judgment indicates that lifetime postrelease supervision was also imposed as a result of his convictions for burglary and criminal discharge of a firearm when only a maximum of 36 months is allowed. The State concedes the issue. Accordingly, we vacate only that portion of his sentence and remand for resentencing.
Facts
During the late evening hours of October 20,2012, Tracy Jordan and Eddie London drove Jordans black Pontiac Grand Am to a community center located near Tenth Street and Washington Boulevard in Kansas City, Kansas, to pick up Jordan’s brother, Charles Shelby, and his friend, Bradley, from a function that was ending. After picking them up, the group traveled eastbound on Washington Boulevard with the plan of going to the Power & Light District in downtown Kansas City, Missouri. Jordan drove; London sat in the front passenger seat; and Shelby and Bradley rode in the backseat.
Once the two eastbound lanes of Washington Boulevard pass Fourth Street, the lanes slowly curve south and eventually split, with the left lane exiting onto eastbound 170 (taking travelers into Missouri). The right lane proceeds south and then makes a sharp curve to the east. At this point, the lane is called Minnesota Avenue; it travels a short distance east until meeting with Third Street. Proceeding directly east through the intersection of Third and Minnesota would cause a person to travel the wrong way on Fairfax Trafficway.
As the group traveled around tire first curve on Washington Boulevard, preparing to take the exit for eastbound 1-70, someone started firing multiple gunshots at them. Moments later, the rear window shattered. Jordan noticed that the gunfire was coming from a red car directly behind them. Jordan continued driving in the right lane, eventually going around the sharp curve and com ing to the intersection of Third and Minnesota. He drove through the intersection, going the wrong way up Fairfax Trafficway. At that point, the red car stopped its pursuit and turned left on Third Street.
Sometime during the shooting, but after the rear window had been shot out, Shelby heard Rradley say, “I’m hit.”
Due to the damage the car sustained, Jordan’s Grand Am eventually came to a stop on Fairfax Trafficway. Shelby estimated that more than a minute had passed from the time he heard the first shot to the time the car stopped on Fairfax; London estimated 2 minutes had passed. Jordan got out of the car and waived down a truck driver, asking him to call the police. Police eventually responded to the scene and discovered that Bradley had died as a result of a single gunshot wound.
Police did not find any weapons or bullet casings inside the Grand Am. Police noted that the car had sustained several bullet holes, indicating that it was fired upon from behind.
During the investigation of the shooting, police scavenged the area on eastbound Washington Boulevard where the initial shots occurred and discovered bullet casings beginning just after the exit sign for Minnesota Avenue/Fairfax District. The sign noted that the exit — where traffic lines begin denoting separation of the two eastbound lanes — was Vs-mile away. In this general area, police discovered a total of 31 shell casings — nineteen 7.62x39 mm casings and twelve 9 mm casings. Near the intersection of Third and Minnesota — where the red car ended its pursuit — police found 20 shell casings — fourteen 7.62x39 mm casings and six 9 mm casings.
Police eventually found a red Dodge Intrepid parked in tire middle of an alley near 25th and Garfield. The interior of the car was partially burnt. Someone had attempted to set the car on fire by igniting a gas can and placing it behind the front passenger seat. Police noted that the outer plate of the ignition switch was missing, indicating that someone had used a screwdriver to start the car. There were no weapons found inside, and there was no evidence that the car had sustained any gunshot damage. But police did find two 9 mm shell casings inside the car.
In all, police recovered 53 shell casings — thirty-three 7.62x39 mm casings and twenty 9 mm casings. Law enforcement determined that all 33 of the 7.62x39 mm casings were fired from the same gun. Of the twenty 9 mm casings recovered, 13 were fired from one gun, and seven were fired from another. In other words, three firearms were involved in the shooting — one firing 7.62x39 mm bullets and two firing 9 mm bullets.
A forensic scientist from the KBI testified that foe most common firearm designed for 7.62x39 mm ammunition is an AK-47 rifle. In comparison, 9 mm ammunition is typically used in handguns. The scientist also estimated that an AK-47 without a shoulder stock is at least 26 inches long and that a shoulder stock generally adds another 8 to 10 inches in length. The scientist said that a 9 mm handgun is typically around 10 inches in length.
During Bradleys autopsy, a forensic pathologist recovered foe fatal bullet. The forensic scientist examined the bullet. Though he could not determine its exact caliber, the scientist stated that based on its characteristics, the bullet was “consistent with a rifle caliber rather than a handgun caliber.”
A couple of days, after foe shooting, police learned that 16-year-old D’Andre Hill may have been involved in the shooting. On October 24, 2012, Hill, accompanied by his mother, spoke with police about the shooting. Hill told police that he and Deandre Harris (age 17) were at the Chelsea Apartment complex off Seventh Street when Potts (age 15) and Bobby Hale, Jr., (age 18 or 19) picked them up in a red car. As Potts drove, Hale sat in the front passenger seat, and Hill and Harris sat in foe back seat.
According to Hill, as they traveled eastbound on Washington Boulevard, he heard Hale say, “There they go.” Then, Hill heard a “boom” and- realized that Hale was firing a rifle at a black car in front of them. Hill and Harris, who were armed with handguns, joined in and started firing their weapons at foe car while Potts drove. As Potts followed foe car down the Third Street exit, he drove into a curb or guardrail, but kept following foe black car. Hill said that Potts stopped following foe car once it drove through foe intersection at Third and Minnesota and proceeded the wrong way on Fairfax Trafficway. Potts then turned left onto Third Street and drove away.
Hill said that no one discussed the shooting prior to it occurring.
On October 26, Potts, accompanied by his grandfather, came to the police station. After being advised of and waiving his Miranda rights, Potts spoke with two detectives. He told them that on the day of the shooting, he was walking by himself when he got tired and decided to steal a red Dodge Intrepid. He drove the car to an apartment complex off Seventh Street where he picked up Hale, Hill, and Harris. Hale sat in the front seat, Hill and Harris sat in the back seat. Potts told detectives that he was driving east on Washington Boulevard when he heard a “boom.” He looked over and saw that Hale had fired, in Potts’ words, a “big gun” out the front passenger-side window at a car traveling in front of them. As Hale fired his weapon at the car, Potts said that he sped up and followed the car until it went down die wrong way of a one-way street. After-wards, Potts drove his companions back to the apartment complex and dropped them off. He then parked die car and walked to his grandmothers house.
Potts told detectives that he did not realize anyone in the car was armed prior to the shooting.
After charging Potts in juvenile court widi felony murder and criminal discharge of a firearm at an occupied vehicle, the State filed a motion seeking authorization to prosecute Potts as an adult pursuant to K.S.A. 2012 Supp. 38-2347. After conducting an evidentiary hearing, the district court granted the State’s motion. The State filed an amended information charging Potts with the additional crimes of vehicular burglary and theft.
At Potts’ jury trial, Hill testified for the State. Other than a few additional details, Hill’s account of the shooting was similar to the account he gave to detectives. Hill, again said that he and Harris were picked up at the apartment complex by Potts who was driving a red Dodge Intrepid. Hale sat in the front seat. Hill said that they left tire apartment complex to buy cigars.
Hill indicated that somewhere around the area of Fifth and Washington, he heard Hale say, “There they go.” Then he heard gunshots, looked up, and saw Hale firing an assault rifle out the front passenger-side window at a car. Hill said that he thought they were getting shot at, so he began shooting at the car with his hand gun. Hill said that when they started shooting at the car, it was a couple of car lengths away.
Hill said that he and Harris were both armed with 9 mm handguns while Hale was armed with an assault rifle. Hill described Hale s gun as being long, estimating that it was 2 feet in length. Hill claimed that he did not know Harris and Hale were armed until the shooting occurred. Hill said that prior to the shooting, they had not discussed looking for a particular vehicle.
Hill said that as they were going around a curve, they hit a curb. Initially, Hill said that everyone stopped firing their weapons at this point. But later on cross-examination, Hill said that the shooting stopped once Potts turned left onto a street, presumably Third Street. Hill said that after the shooting, Potts drove them back to the Chelsea apartments where everyone got out of the car and left. Hill and Harris returned later and drove the car to an alley, set fire to it, and left. Hill said that after throwing his gun into a sewer, he returned to the apartment complex.
At the end of the State s case-in-chief, the district court granted Potts' motion for a directed verdict on the theft count due to the State failing to put on any evidence to establish the car’s owner.
Potts presented the testimony of Dwight Alexander, an attorney who, at the request of defense counsel, timed how long it took to drive the portion of Washington Boulevard where the shooting took place. Alexander testified that the speed limit in that area is 30 miles per hour. Alexander said that going the speed limit, it took him 16.47 seconds to travel from the ⅛mile exit sign for Minnesota Avenue/Fairfax District to the start of the exit for Minnesota Avenue/Fairfax District. From the exit sign to the stop sign at the intersection of Third Street and Minnesota Avenue, it took 39.27 seconds to travel that distance going the speed limit. Alexander noted that he had to slow down in order to negotiate the shape curve leading onto Minnesota Avenue.
The jury found Potts guilty of felony murder, criminal discharge of a firearm at an occupied vehicle, and burglary. More facts will be stated as they become pertinent to issues discussed below.
Felony Murder and Criminal Discharge of a Firearm
Potts argues that his convictions for felony murder and criminal discharge of a firearm at an occupied vehicle should be reversed because, according to him, the evidence was inconclusive as to whether he intended to aid his companions (particularly Hale) when they initially fired their weapons at the Grand Am. Potts contends that Hale, his front-seat passenger, started shooting at the Grand Am without any warning and that the bullet which killed Bradley was fired from Hale s gun. Potts claims that because it is possible Hale fired the fatal shot before he, Potts, acted in a manner which aided Hale and the others with the shooting (i.e., speeding up in order to stay close to the Grand Am), the evidence was insufficient to convict him of either criminal discharge of a firearm or felony murder.
When the sufficiency of the evidence is challenged in a criminal case, we review the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). This court has also recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the juiy has the right to make die inference.” McCaslin, 291 Kan. 697, Syl. ¶ 9.
Felony murder is the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony.” K.S.A. 2012 Supp. 21-5402(a)(2). Criminal discharge of a firearm at an occupied vehicle is considered an inherently dangerous felony for purposes of applying the felony-murder rule. See K.S.A. 2012 Supp. 21-5402(c)(1)(O).
The district court instructed the jury that in order to convict Potts of criminal discharge of a firearm at an occupied vehicle, it had to find that Potts or another for whose conduct Potts was crimi nally responsible: (1) discharged a firearm at the Grand Am; (2) did so recklessly and without authority; (3) the Grand Am was occupied by a person, regardless of whether this was known by Potts or his companions at die time of the shooting; and (4) the shooting caused great bodily harm to Bradley. See K.S.A. 2012 Supp. 21-6308(a)(1)(B) and (b)(1)(B). In order to hold Potts criminally responsible for the conduct of his companions, the jury was instructed:
“A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit tire crime. All participants in a crime are equally responsible without regard to the extent of their participation. Mere association with the principles who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor.”
We have repeatedly stated that if someone dies during the course of an inherently dangerous felony, such as criminal discharge of firearm at an occupied vehicle, “all the participants... [are] equally guilty of the felony murder, regardless of who fired the fatal shot.” State v. Thomas, 239 Kan. 457, 462, 720 P.2d 1059 (1986). All participants in a felony murder are principals. See State v. Littlejohn, 260 Kan. 821, 822, 925 P.2d 839 (1996); Thomas, 239 Kan. at 462.
Potts’ sufficiency argument fails to account for direct and circumstantial evidence that the jury could have relied on to conclude that he intended to aid his companions with the shooting at its very beginning. The jury was presented with evidence establishing that Potts stole a car prior to the shooting and that Píale — armed with an assault rifle that was at least 2 feet in length — got into the car and sat in the front passenger seat as Potts drove. After picking up Hill and Harris at the apartment complex, Potts drove the car east on Washington Boulevard. Hill’s testimony indicated that somewhere around Fifth Street and Washington Boulevard, Hale said, “There they go,” and then he started firing his weapon at the Grand Am. Hill and Harris soon joined in by firing their handguns at the car. Police discovered 31 shell casings (nineteen 7.62x39 mm casings and twelve 9 mm casings) on eastbound Washington Street beginning just past the Vs-mile exit sign for Minnesota Avenue/ Fairfax District, which is past the intersection of Fourth Street and Washington Boulevard.
Based on this evidence, the jury could have inferred that Potts stole the car for the purpose of acquiring transportation in order to commit the shooting. The fact that Hale got into the car and sat next to Potts while armed with an assault riñe (a weapon not easily concealed) supports this inference. Hales statement of “There they go” indicates a prearranged plan to commit the shooting because the statement implies Potts would know that Hale was referring to the occupants of the Grand Am. Finally, instead of simply stopping the car or pulling over, Potts reacted to the initial shots by speeding up and following the Grand Am for a considerable distance, which included driving past an exit for 1-70 and pursuing the car around a sharp curve leading onto Minnesota Avenue, thereby allowing his companions (based on the evidence collected near the intersection of Third and Minnesota) to fire their weapons 20 more times at the car. Accordingly, the State presented sufficient evidence to show that Potts, before and during the incident, intended to aid his companions with firing their weapons at the Grand Am. Because Ramon Bradley died as a result of the shooting, the evidence was also sufficient for the jury to find Potts guilty of felony murder and criminal discharge of a firearm at an occupied vehicle.
Vehicular Burglary
Potts was convicted of burglary in violation of K.S.A. 2012 Supp. 21-5807(a)(3) based on his act of illegally entering and stealing the Dodge Intrepid that was used in the shooting. Potts contends that his conviction must be reversed because, according to him, an unauthorized entry into a vehicle with the intent to steal that very same vehicle is not criminalized by the burglary statute. Rather, the statute criminalizes the unauthorized entry into a vehicle with the intent to steal property located within the vehicle. Accordingly, Potts argues that because there was no evidence presented at trial that he entered the Dodge Intrepid with the intent to steal anything from within the vehicle, his conviction for vehicular burglary must be reversed.
Again, when the sufficiency of the evidence is challenged in a criminal case, we review the evidence in a fight most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Frye, 294 Kan. at 374-75. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. McCaslin, 291 Kan. 697, Syl. ¶ 8. To the extent that Potts’ argument requires interpretation of the burglary statute, this court exercises unlimited review. See State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
K.S.A. 2012 Supp. 21-5807(a)(3) states in pertinent part that burglary is entering into vehicle without authority with intent to commit a theft “therein.” Theft is defined in pertinent part as obtaining or exerting unauthorized control over property with the intent to permanently deprive the owner of the use or benefit of the property. K.S.A. 2012 Supp. 21-5801(a)(1). As the language of the burglary statute indicates, proof that the defendant completed a theft is not required for a conviction. Instead, the evidence must show that the defendant illegally entered the vehicle with the intent to commit a theft therein. See State v. Rush, 18 Kan. App. 2d 694, 701, 859 P.2d 387 (1993), rev'd on other grounds 255 Kan. 672, 877 P.2d 386 (1994).
Potts argues that the legislatures use of the word “therein” (a word meaning “in or into that place or thing,” see the Merriam Webster Dictionaiy [Online ed. 2016]) shows that the legislature intended to proscribe the act of entering a vehicle without authority for the purpose of stealing something from within the vehicle rather than entering the vehicle with the intent to steal the vehicle.
As Potts acknowledges, the Court of Appeals rejected this argument in State v. Jones, 29 Kan. App. 2d 936, 34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002), but he argues that the court’s reasoning for doing so ignored the language of K.S.A. 21-3715(c), the predecessor to K.S.A. 2012 Supp. 21-5807(a)(3). K.S.A. 21-3715(c) defined burglary as “knowingly and without authority entering into or remaining within any... motor vehicle ... with intent to commit a felony, theft or sexual battery therein.” Like Potts, the defendant in Jones argued that by including “therein” within the statutory definition of vehicular burglary, the legislature distinguished an intent to commit a theft within the vehicle (i.e., stealing an item located inside the vehicle) from the intent to commit a theft of the vehicle. Accordingly, the defendant argued that he could not be convicted of burglary based on his act of entering a vehicle with the intent to steal it.
The Jones court construed the defendants argument as essentially contending that “because the entry of the vehicle was a necessary part of the theft of the vehicle,” the two crimes merged together, preventing his prosecution for both crimes. 29 Kan. App. 2d at 937. Rejecting this argument, the court reasoned that burglary and theft are separate crimes with distinct elements. “[T]he fact that one necessarily precedes the other does not demonstrate a merger of the offenses any more than a burglary of a house, although nec-essaiy to the completion of some offense inside the house, merges with that offense upon its completion.” Jones, 29 Kan. App. 2d at 939.
Admittedly, the Jones court failed to precisely address the defendants argument regarding the impact of the word “therein” upon the mens rea element of vehicular burglaiy. But the court did touch upon the fact that burglary and theft are separate crimes and that if a person unlawfully enters a vehicle with the intent to commit a theft, he or she is guilty of burglary, regardless of the property the person intended to steal after entering the vehicle. There is nothing in the statutory language of K.S.A. 2012 Supp. 21-5807(a) (3) or K.S.A. 2012 Supp. 21-5801(a)(1) that restricts the scope of the burglary statute to situations in which the defendant steals or intends to steal something from the interior of a vehicle, as opposed to attempting to steal or actually stealing the vehicle itself. Simply stated, a person who illegally enters a car for the purpose of completing a theft — be it hotwiring a car or removing a car stereo — necessarily intends to commit a theft inside the vehicle (i.e., therein) and may be properly convicted of vehicular burglary under K.S.A. 2012 Supp. 21-5807(a)(3).
Courts from other jurisdictions with similar vehicular burglary statutes have reached the same conclusion. In Illinois, where vehicular burglary is defined as a knowing entry without authority into “a motor vehicle ... or any part thereof, with intent to commit therein a felony or theft,” see 720 Ill. Comp. Stat. Ann. 5/19-1(a) (2014), the courts have rejected the same argument Potts makes in this case — that entry into a vehicle with the intent to steal the vehicle itself (as opposed to something Therein”) does not constitute a burglary. See People v. Buckner, 203 Ill. App. 3d 525, 535, 561 N.E.2d 335 (1990) (noting that if the court adopted defendants construction of vehicular burglary statute, “a person who entered a car to steal something from within would be punished for burglary but a person breaking in to steal the car itself would be guilty of theft only”); People v. Mullinex, 125 Ill. App. 3d 87, 89-91, 465 N.E.2d 135 (1984); People v. Sansone, 94 Ill. App. 3d 271, 273-74, 418 N.E.2d 862 (1981). In Florida, where vehicular burglary is defined as an entry into “a structure or a conveyance with the intent to commit an offense therein,” see Fla. Stat. Ann. § 810.02 (2007), the courts have also rejected the argument that the statute ought not to apply when the only intent is to steal the vehicle itself. See, e.g., State v. Stephens, 601 So.2d 1195, 1196-97 (Fla. 1992) (The court noted that “therein” is synonymous with “in that place” and that use of the word “therein” within vehicular burglary statute “places no requirement that the crime must be one that can be completed solely within the fixed limits of that particular place, only that the crime is intended to be committed there. This obviously can include an intent to commit car theft, because such a crime can be committed fin that place.’”). Accord State v. Griffin, 116 N.M. 689, 694, 866 P.2d 1156 (1993) (construing New Mexico’s vehicular burglary statute and concluding that “[bjreaking into a car with the intent to steal the car qualifies as an intent to commit a theft "therein’ ”).
Potts does not dispute that the evidence presented at trial established he did not have permission to take the Dodge Intrepid. He simply argues that his act of illegally entering the car with the intent to steal the car is insufficient to sustain his conviction for vehicular burglary. Based on our construction of K.S.A. 2012 Supp. 21-5807(a)(3), we reject Potts’ argument and affirm his conviction for vehicular burglary.
Motion to Suppress
Next, Potts argues that the district court erred in failing to sup press his statements to police because his statements were involuntarily made. Potts acknowledges that he failed to object at trial when Detective Angela Garrison testified about Potts’ statements to police. But he argues that notwithstanding the lack of a contemporaneous objection, this court should address the merits of this evidentiary issue in order to serve the ends of justice or to prevent the denial of fundamental rights. He also argues that judicial economy would be promoted by addressing the issue now rather than forcing him to file a K.S.A. 60-1507 motion based on ineffective assistance of trial counsel for failing to object at trial.
We reject Potts’ invitation to address this issue. In State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009), we stated:
“[W]e hold that when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal. This holding is also consistent with the language in K.S.A. 60-404 — objection to the evidence must be ‘timely interposed’ — and consistent with this court’s longstanding characterization of the statutory language as requiring a ‘contemporaneous’ objection. Among other advantages, this holding allows a court to rale on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared — after timely trial objection — to reconsider its original ruling.”
Further, it should be noted that Potts’ statements to police played a central role in his defense against the charges of felony murder and criminal discharge of a firearm at an occupied vehicle. Defense counsel performed an extensive cross-examination of Detective Garrison regarding Potts’ statements to police. During this cross-examination, defense counsel was able to highlight for the jury Potts’ statements indicating that he was not aware his companions were armed prior to the shooting; that the shooting was spontaneous, brief, and surprised him, and that as soon as he could, he stopped following the Grand Am by turning onto Third Street. Defense counsel used these statements in her closing argument to contend that Potts should not be found guilty of either criminal discharge of a firearm at an occupied vehicle or felony murder because he never intended to aid his friends with shooting at the Grand Am. Accordingly, defense counsel’s failure to raise a contemporaneous objection during Garrison’s testimony concerning Potts’ statements may have been a strategic decision that will prove to be unchal lengeable in a later K.S.A. 60-1507 motion raising ineffective assistance of counsel. See Rowland v. State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009) (If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel’s decision is virtually unchallengeable.). Consequently, Potts’ judicial economy argument for why this court should address his unpreserved evidentiary issue on direct appeal is not persuasive.
We decline to address Potts’ argument regarding the admission of his statements into evidence because he failed to preserve the issue for appellate review.
Jury Instruction on Aiding and Abetting
Next, Potts argues that the district court s juiy instruction on aiding and abetting was erroneous because it failed to clearly convey that Potts, in order to be found guilty of criminal discharge of a firearm at an occupied vehicle, needed to act intentionally in aiding Hale with shooting at the Grand Am. To remedy this, Potts contends that the statutoiy definition of intentional conduct should have accompanied the instruction on aiding and abetting culpability. See K.S.A. 2012 Supp. 21-5202(h) (“A person acts ‘intentionally,’ or ‘with intent,’ with respect to the nature of such person’s conduct or to a result of such person’s conduct when it is such person’s conscious objective or desire to engage in the conduct or cause the result.”).
Potts concedes that he did not request the instruction or object to the district court’s jury instruction on aiding and abetting. Accordingly, review of this issue is controlled by K.S.A. 22-3414(3) and the stairstep analytical process set out in State v. Herbel, 296 Kan. 1101, Syl. ¶¶ 7-8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012). As Williams articulated, K.S.A. 22-3413(3) creates a procedural hurdle when a party fails to object because the statute establishes a preservation rule for instruction claims on appeal. It provides, in part, 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 the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in the district court. Williams, 295 Kan. at 512-13.
To establish that tire giving or failure to give an instruction was clearly erroneous, the reviewing court must determine whether there was any error at all. This requires demonstrating that giving the proposed instruction would have been both legally and factually appropriate, employing an unlimited review of die entire record. Williams, 295 Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the juiy would have reached a different verdict had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal. 295 Kan. at 516.
The district court gave the following instruction (based on PIK Crim. 4th 52.140) regarding aiding and abetting culpability:
“A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit tire crime intentionally aids another to commit the crime. All participants in a crime are equally responsible without regard to the extent of their participation. Mere association with the principles who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor.”
The language of the instruction conforms with K.S.A. 2012 Supp. 21-5210(a) (“A person is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures thé' other to commit the crime or intentionally aids the other in committing the conduct constituting the crime.”).
In State v. Llamas, 298 Kan. 246, 311 P.3d 399 (2013), this court reviewed an aiding and abetting instruction based on PIK Crim. 3d 54.05 — the predecessor to PIK Crim. 4th 52.140. The instruction stated:
“ ‘A person who, either before or during its commission, intentionally aids another to commit a crime with the 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 the crime.’” 298 Kan. at 258.
The district court denied the defendant’s request in Llamas to add the following language to the instruction:
“‘[M]ere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abetter. To be guilty of aiding and abetting in the commission of the crime the defendant must willfully associate himself with the unlawful venture and willfully participate in it as he would something he wishes to bring about.”’ 298 Kan. at 258.
On appeal, the defendant argued that the district court erred in refusing to give the additional language because the jury was left without direction regarding his defense (similar to Potts’ defense) that he was merely present at the crime scene and did not assist an acquaintance with firing a gun at an occupied vehicle that resulted in a death. This court acknowledged that though the “mere association or presence” language was a correct statement of law, several of its prior decisions had concluded that the language of PIK Crim. 3d 54.05 “ ‘clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction for aiding and abetting.’” 298 Kan. at 260. See, e.g., State v. Edwards, 291 Kan. 532, 552, 243 P.3d 683 (2010) ([“This court has repeatedly held that juries are presumed to intuit from the word ‘intentionally’ in the patterned instruction that proof of mere association or presence would be insufficient to convict.”). Consequently, the court concluded that though “[t]he better practice would be to include the mere association or presence language when a defense is based on the theory that a defendant was merely present and did not actively aid and abet a crime,” the district court did not err by failing to do so. Llamas, 298 Kan. 261-62; see also State v. Littlejohn, 298 Kan. 632, 650-51, 316 P.3d 136 (2014) (reaching same conclusion).
The instruction at issue in this case gave a more extensive description of criminal liability based on aiding and abetting than the instruction at issue in Llamas. The first two sentences of the aiding and abetting instruction given in this case are substantially similar to tire instruction at issue in Llamas — -an instruction that the court determined “ ‘clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction for aiding and abetting.’” 298 Kan. at 260. The requirement that the defendant act intentionally in order to find him or her criminally responsible for a crime committed by another is reinforced by the last sentence of the instruction at issue here: “Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor.”
The instruction as a whole clearly conveyed to the jury that a defendant, in order to be found guilty for a crime committed by another, must have intentionally aided in the commission of the crime. We conclude that it was not legally necessary for the district court to add the definition of intentional conduct sua sponte to the instruction it gave the jury on aiding and abetting liability. Based on the caselaw cited above, doing so would have been redundant.
Cumulative Error
Potts next argues that cumulative error cost him a fair trial. Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of tire circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover, this doctrine does not apply if no error or only one error supports reversal. See State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
Based on the above analysis, none of the trial issues raised on appeal constitute error. Therefore, the court should not apply the cumulative error doctrine here
Prosecution as an Adult
Potts also argues that when the district court made factual findings supporting its decision to authorize adult prosecution, it increased his potential punishment in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Potts acknowledges that he failed to raise this issue before the district court, but he notes that this court has addressed Apprendi issues for the first time on appeal. See, e.g., State v. Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001); cf. State v. Perez, 292 Kan. 785, 261 P.3d 532 (2012) (refusing to address adult-certification Apprendi argument because defendant failed to comply with Supreme Court Rule 6.02 [2015 Kan. Ct. R. Annot. 41] by not explaining why issue should be considered for the first time on appeal). Whether the district court violated Apprendi by making factual findings authorizing Potts to stand trial as an adult raises a question of law subject to unlimited review. See State v. Tyler, 286 Kan. 1087, 191 P.3d 306 (2008).
Here, the district court, not a jury, found that the State could prosecute Potts as an adult under K.S.A. 2012 Supp. 38-2347. Potts contends that if he had been prosecuted as a juvenile, he would have faced approximately 8 years in a juvenile correctional facility, compared to the controlling hard-20 fife sentence he received as the result of being tried as an adult. Because the district courts approval of adult prosecution increased the maximum punishment Potts faced, and the determination was not tried before a jury and proven beyond a reasonable doubt, Potts claims his rights under the Sixth and Fourteenth Amendments to the United States Constitution — as interpreted by Apprendi and its progeny — were violated.
Potts concedes that this court has rejected this argument in several cases. See Tyler, 286 Kan. at 1096; State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003); State v. Jones, 273 Kan. 756, 47 P.3d 783, cert. denied 537 U.S. 980 (2002). In Jones, we held that while Ap-prendi applies to the sentencing phase of a criminal proceeding after guilt has been determined, the case does not apply to an initial adult certification hearing because such a hearing addresses a ‘jurisdictional matter” meant to determine which court (juvenile or adult) will resolve the case. Thus Apprendi s requirement of a jury determination is not required for a juvenile to be tried as an adult. 273 Kan. at 774-78.
This court affirmed Jones’ reasoning in Tyler. Tyler argued that his Apprendi rights were violated when the district court made the factual findings necessary to allow his prosecution as an adult rather than as a juvenile. The Tyler court rejected this argument, reasoning that Apprendi forbids only the imposition of a sentence that exceeds the statutory maximum permitted by the facts required by the jury’s finding of guilt. In other words, Apprendi still applies after the certification procedure sends a juvenile to adult court. Tyler, 286 Kan. at 1095-96.
Notably, “[t]he vast majority of courts have held that a judges decision whether a juvenile should be prosecuted as an adult is a pre-adjudicatory question of jurisdiction and therefore does not implicate the Apprendi case fine.” Jenny E. Carroll, Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment, and Adult Process, 61 Hastings L.J. 175, 201 (2009). See, e.g., United States v. Miguel, 338 F.3d 995, 1004 (9th Cir. 2003) (“Apprendi does not require that a jury find the facts that allow the transfer to district court. The transfer proceeding establishes the district courts jurisdiction over a defendant.”); United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000) (holding that the transfer of a juvenile to an adult court “merely establishes a ‘basis for district court jurisdiction’”); State v. Kalmakoff, 122 P.3d 224, 227 n.29 (Alaska App. 2005) (finding that the weight of authority indicates that transfer proceedings are mere determinations of the court’s jurisdiction and therefore Apprendi protections do not apply); State v. Rodriguez, 205 Ariz. 392, 401, 71 P.3d 919 (Ariz. App. 2003) (holding that the state juvenile-transfer statute in question is not a sentence-enhancement scheme because “it does not subject [a] juvenile to enhanced punishment, it subjects [a] juvenile to the adult criminal justice system”); People v. Beltran, 327 Ill. App. 3d 685, 690-91, 765 N.E.2d 1071 (2002) (holding that transfer establishes jurisdiction and therefore is “dis-positional, not adjudicatory”); Caldwell v. Com., 133 S.W.3d 445, 452-53 (Ky. 2004) (adopting the argument that juvenile transfer is merely jurisdictional); State v. Lopez, 196 S.W.3d 872, 875-76 (Tex. App. 2006) (holding that a decision allowing “prosecution of a juvenile as an adult” only “involves the determination of which system will be appropriate for a juvenile offender”).
Potts claims that Tyler was wrongly decided because the court focused on the jurisdictional nature of authorizing the State to prosecute a juvenile as an adult rather than the effect adult certification has on a juvenile, i.e., subjecting him or her to the pos sibility of increased punishment. However, Potts’ argument fails to acknowledge that tire adult certification procedure takes place before a juvenile has been found guilty of committing any crime. In Apprendi, tire Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. But the Court cautioned that “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” (Emphasis added.) 530 U.S. at 494. Since Apprendi, the Court has never indicated or hinted that Apprendi would apply to a factual determination made at a pretrial proceeding. Cf. Hurst v. Florida, 577 U.S. _, 136 S. Ct. 616, 621-22, 193 L. Ed. 2d 504 (2016) (concluding that Florida’s capital sentencing scheme violates the Sixth Amendment because judicial fact finding exposes defendant to greater punishment [death] than the punishment authorized by jury’s guilty verdict [life sentence]); Alleyne v. United States, 570 U.S. _ 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013) (concluding that defendant’s Sixth Amendment rights were violated when a judge made factual finding that increased defendant’s mandatory minimum sentence resulting from jury’s guilty verdict).
Based on the above, we affirm our holding in Tyler and conclude that Potts’ Sixth Amendment rights were not violated when the district court made factual findings authorizing the State to prosecute Potts as an adult.
Postrelease Supervision
Finally, Potts argues that the district court erred by noting within the journal entry of judgment that Potts was subjected to lifetime postrelease supervision for all of his convictions. He argues that this court should order the preparation of a nunc pro tunc or amended journal entry of judgment to reflect that he is subject to lifetime parole for the felony-murder conviction and 36 months of postrelease supervision for the criminal discharge of a firearm and burglary convictions. The State concedes this issue.
A criminal sentence is effective when pronounced from the bench at the sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore, a journal entry that imposes a sentence that varies from the sentence pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012); see also State v. Mebane, 278 Kan. 131, 136, 91 P.3d 1175 (2004) (explaining nunc pro tunc orders are appropriate to correct clerical errors arising from oversight or omission). A journal entry of judgment may be corrected “at any time” by a nunc pro tunc order. See K.S.A. 22-3504(2); Mason, 294 Kan. at 677.
Under K.S.A. 2012 Supp. 22-3717(b)(2), a person convicted of felony murder is “eligible for parole after serving 20 years of confinement without deduction of any good time credits.” Under subsection (d)(1)(A), a person convicted of a nondrug severity level 3 crime (such as criminal discharge of a firearm resulting in great bodily harm, see K.S.A. 2012 Supp. 21-6308[b][1][B]) “must serve 36 months, plus the amount of good time and program credit earned and retained ... on postrelease supervision.” In addition, subsection (d)(1)(F) of K.S.A. 2012 Supp. 22-3717 states:
“In cases where sentences for crimes from more than one severity level have been imposed, the offender shall serve the longest period of postrelease supervision as provided by this section available for any crime upon which sentence was imposed irrespective of the severity level of the crime. Supervision periods will not aggregate.”
Thus the controlling term of postrelease supervision applicable to Potts’ criminal discharge of a weapon and burglary convictions is 36 months. See K.S.A. 2012 Supp. 21-5807(c)(1)(C) (vehicular burglary is a nondrug severity level 9 crime).
At sentencing, the district court judge stated that for the felony-murder conviction, he was sentencing Potts to “a term of fife without eligibility for parole until you have served twenty years.” But shortly after announcing this sentence, the judge stated that “[p]ost-release will be life.” With regard to the criminal discharge of a firearm conviction, the district judge indicated that he was imposing lifetime parole. For the burglary conviction, the judge did not announce a term of postrelease supervision. The sub sequently filed journal entry of judgment indicates that the judge imposed lifetime postrelease supervision for all three convictions.
It appears that the journal entry of judgment reflects, in part, the sentence that the district court pronounced from the bench at sentencing; thus it cannot be corrected by a nunc pro tunc order. State v. Vanwey, 262 Kan. 524, Syl. ¶ 2, 941 P.2d 365 (1997) (“A nunc pro tunc order under K.S.A. 22-3504[2] may only be used to correct actual clerical errors or errors arising from oversight or omission.”). Instead of issuing a nunc pro tunc order, the appropriate remedy is to vacate the lifetime postrelease supervision period that the district court imposed and remand the case for resentencing with instructions that the district court impose lifetime parole for the felony-murder conviction and 36 months of postrelease supervision for the criminal discharge of a firearm and burglary convictions. See K.S.A. 22-3504(1) (an illegal sentence can be corrected at any time); State v. LaBelle, 290 Kan. 529, Syl. ¶ 1, 231 P.3d 1065 (2010) (“An illegal sentence is a sentence . . . which does not conform to the statutory provision, either in character or the term of the punishment authorized . . . .”).
Conclusion
We affirm Potts’ convictions and the accompanying prison sentences. But we vacate the lifetime postrelease supervision term that the district court imposed and remand with directions that the district court impose lifetime parole for the felony-murder conviction and 36 months of postrelease supervision for the criminal discharge of a firearm and burglary convictions. | [
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The opinion of the court was delivered by
Johnson, J.:
Javier Rizo appeals his convictions for first-degree felony murder, three counts of aggravated battery, fleeing or attempting to elude a law enforcement officer, and battery. He argues the district court erred by: (1) failing to obtain a knowing and voluntary trial waiver from him before allowing his case to proceed as a bench trial on stipulations, and (2) denying his motion for a departure sentence. We reject both arguments, affirm the jury trial waiver and the fife sentence for felony murder, and dismiss the sentence departure claim.
Factual and Procedural Overview
In the early morning hours of October 27, 2013, Rizo and his girlfriend, Danielle Martinez, had an argument at a club in the Old Town district of Wichita, Kansas. At approximately 1:15 a.m., Rizo took Martinez’ minivan keys, prompting Martinez to tell Rizo he could not drive her vehicle because he was drunk. Rizo responded by grabbing Martinez around the neck and pushing her, causing security personnel to remove Rizo from the club.
At approximately 2 a.m., two uniformed police officers in the Old Town district learned of a parking lot disturbance. A witness pointed the officers to Martinez’ minivan. The officers walked toward the minivan, but it exited the parking lot. Rizo was driving tire minivan, and he had three passengers with him, including his brother, Tony Losey. The officers pursued the minivan in their marked patrol car. Rizo led the officers on a high speed chase within the city limits, during which he committed multiple traffic violations, including exceeding the posted speed limits, at one point accelerating to an estimated 80 to 90 miles per hour.
Rizo eventually crashed into a Suzuki automobile at an intersection. Rizo and Losey fled the collision scene. The two remaining minivan passengers and the driver and passenger of the Suzuki, Maria and Sergio Martinez, sustained injuries requiring hospitalization. Maria died at the hospital at 2:56 a.m.
The Wichita Police Department attempted to locate Rizo for several weeks following these events. According to Rizos family, Rizo left Kansas shortly after the collision. On January 5, 2014, law enforcement found Rizo at a residence in Wichita, Kansas, and took him into custody.
Rizo was later interviewed by Detective Paul Kimble. After being read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966), Rizo explained that during the events in question, he was drunk and most of the night was a blur. When Rizo saw the police lights, he did not want to get his brother in trouble because the brother was on probation, so Rizo kept driving. He said he did not see the Suzuki coming and did not remember the crash. After the crash, he took off running and did not check on anyone’s wellbeing because he was scared. He further explained that there was a warrant out for his arrest and that he had just gotten out of jail.
The State charged Rizo with second-degree murder or, in the alternative, first-degree felony murder for the death of Maria Martinez; three counts of aggravated battery for the others injured in the collision; fleeing or attempting to elude a law enforcement officer; and battery of his girlfriend. The district court granted Rizo s motion to suppress his pre-Miranda statements and denied his motion to suppress his post-Miranda statements after a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), hearing. At the preliminary hearing, the State presented DNA evidence placing Rizo in the drivers seat of the minivan.
When the parties could not reach a plea agreement, Rizos counsel informed the State that Rizo wanted to waive his right to a jury trial. In exchange for Rizo waiving this right and proceeding on stipulated facts, the State agreed to dismiss another pending criminal case against Rizo for felony fleeing and eluding, Sedgwick County Case No. 13 CR 2514, which the State alleged Rizo committed a few weeks before the events leading to this case. If convicted in 13 CR 2514, Rizo s criminal history score would increase from a “D” to a “B,” which would increase the potential sentences for the guidelines offenses in this case.
Before the district court, the parties discussed their negotiations. Rizo’s counsel asserted that he would never let his client waive his right to a jury trial unless the client was receiving a deal in exchange for the stipulated facts and that, in this case, Rizo did not want to put the victim’s family through a trial. After hearing from both parties, the district court had a colloquy with Rizo about his decision to waive his right to a jury trial. At one point, the district court asked the State and defense counsel if there was anything else the court needed to cover. Defense counsel informed the court, “No, sir. He understands his rights, we have talked about it, this is what he wants to do, and it’s beneficial to him.” The State asked the court to clarify that the only right Rizo was waiving at that time was his right to a jury trial before 12 citizens of the community. The court then ensured that Rizo understood he was waiving his right to a jury trial and wished to proceed “either with a bench trial or a trial to me [the judge] on stipulated facts.”
Later that same day, the parties returned to the district court and presented the court with a document entitled “Agreement to Proceed to Trial on Stipulated Facts” (the stipulated facts agreement) and a document entitled “Stipulation by the Parties” (the additional stipulations). The stipulated facts agreement provided that Rizo had previously made a knowing and voluntary waiver of his jury trial right; it informed the court of Rizo’s choices not to testify in his own defense and to waive confrontation of the State’s witnesses and evidence; it withdrew Rizo s objection to the admission of his post-Miranda statements; and it explained that Rizo agreed to allow the court to accept as true the facts set forth in the exhibits and stipulations agreed upon by the parties. The agreement also clarified that if Rizo was convicted of any charges, both parties were free to argue for any lawful sentence.
Pursuant to the stipulated facts agreement, the district court formally dismissed the charges in 13 CR 2514. At the State’s request, the ¿strict court held an on-the-record colloquy with Rizo regarding his decision to proceed as set forth in the stipulated facts agreement. The district court confirmed with Rizo that he had signed the stipulated facts agreement and additional stipulations after having ample time to consult with his counsel and obtain answers to any questions he had. Rizo said it was his decision alone to sign both documents.
The district court found Rizo guilty as charged on each count. The district court denied Rizo s motion for new trial or judgment of acquittal, where Rizo argued insufficient evidence supported the district courts verdict.
At sentencing, the district court denied Rizo s motion for departure. The court dismissed the second-degree murder conviction and sentenced Rizo to life in prison for first-degree felony murder, 55 months for the primary count of aggravated battery, and 34 months for one of the additional counts of aggravated battery, to run consecutive to the life sentence. The court also imposed 31 months for the remaining count of aggravated battery, 7 months for fleeing or attempting to elude a law enforcement officer, and 6 months for battery to run concurrently. Therefore, Rizos controlling sentence was life imprisonment with 89 months’ imprisonment to run consecutive to the life sentence.
Rizo filed a timely appeal, over which this court has jurisdiction under K.S.A. 2015 Supp. 22-3601(b) (off-grid crime; maximum sentence of fife imprisonment imposed).
Trial Rights Waiver
Rizo argues the district court did not obtain a knowing and voluntary trial waiver from him. He asserts that when he waived his right to a jury trial, the district court failed to fully inform him of all the rights he was waiving because, at that time, the parties had not determined whether the trial would proceed as a bench trial with evidence presented or a bench trial on stipulated facts. Before considering the merits of Rizo s claim, there is a threshold question concerning preservation.
Issue Preservation
The State argues that this court should not consider Rizo s claim for the first time on appeal. In general, issues not raised before the trial court cannot be raised for the first time on appeal. See, e.g., State v. Shadden, 290 Kan. 803, 813, 235 P.3d 436 (2010). However, there are three recognized exceptions allowing an appellate court to consider a constitutional issue raised for the first time on appeal, including when consideration of the issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights. State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012).
Because preservation is a prudential rule, rather than a jurisdictional bar, we have discretion to apply an exception to the general rule. State v. Frye, 294 Kan. 364, 369, 277 P.3d 1091 (2012). In Frye, we rejected a bright-line rule that a juiy trial waiver issue cannot be raised for the first time on appeal, reasoning “whether the court has advised a defendant of his or her right to a juiy trial . . . should be one of the last to be denied the opportunity for exceptional treatment.” 294 Kan. at 370. Frye held the Court of Appeals did not err in applying an exception to the preservation rule where the district court made no effort to ascertain the validity of a handwritten jury trial waiver and did not advise the defendant of his right to a jury trial. 294 Kan. at 371.
In State v. Beaman, 295 Kan. 853, 856-62, 286 P.3d 876 (2012), we likewise addressed a jury trial waiver issue for the first time on appeal where defendant claimed he was confused during the district court’s discussion about waiver, which the defendant argued implicated the district courts affirmative duty to ensure he fully understood his right to a jury trial. Rizos claim is analogous to the issue we reviewed in Beaman. He claims the district court’s juiy trial waiver colloquy was inadequate to inform him of other trial rights he would waive if he proceeded to a bench trial on stipulated facts as opposed to a bench trial where evidence was presented. While we ultimately disagree with his arguments, we will consider the issue even though it is raised for the first time on appeal.
Standard of Review
“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 die defendant voluntarily and knowingly waived the jury trial right is a.lagal inquiry subject to unlimited appellate review.” Beaman, 295 Kan. at 858.
Analysis
The Sixth Amendment to the United States Constitution and §§ 5 and 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury trial. See also K.S.A. 22-3403(1) (“The defendant and prosecuting attorney, with the consent of the court, may submit tire trial of any felony to tire court. All other trials of felony cases shall be by jury.”); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975) (“The right of a criminal defendant to be tried by a jury of his peers, rather than by tire court alone, is ‘fundamental to the American scheme of justice.’”) (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]). Although “[a] criminal defendant may waive tire fundamental right to a jury trial if the court and State agree to tire waiver,” such waivers are “strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury.” Beaman, 295 Kan. at 858 (citing Irving, 216 Kan. at 589).
Therefore, the district court cannot accept a jury trial waiver “ ‘unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.’ ” Irving, 216 Kan. at 589-90 (quoting American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2[b], p. 7). “The test for determining the waiver’s validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing. Whether that test is satisfied depends upon the particular facts and circumstances in each case.” Beaman, 295 Kan. at 858.
Here, Rizo does not dispute that he waived his right to a jury trial in open court. Further, he acknowledges that the district court’s colloquy with him “arguably adequately constituted a waiver of [] Rizo’s right to trial by jury by informing him he was waiving die right to have 12 people malee a unanimous decision!.]” We agree with that concession. The district court held a lengthy colloquy with Rizo, where the court advised Rizo that he was waiving his right to a jury trial. The following excerpt illustrates how the district court advised Rizo of the right he was waiving:
“THE COURT: All right. And when you have- — when you have a jury, the jury is 12 people. And what happens with your situation is you go through a possible panel by questioning them, trying to find their impartiality, trying to find their neutrality on a case like this, and certain jurors are dismissed and you end up with 12.
“And you have a right to present your case to those 12 people. And those 12 people have to unanimously decide that you’re guilty. If they don’t have unanimity, if it is not unanimous, then they don’t come back with a guilty verdict on you. That’s in particular what you’re giving up. Do you understand that, [sic]
“THE DEFENDANT: Yes, sir.
“THE COURT: And is it still your desire to waive that trial to a jury and then proceed either with a bench trial or a trial to me on stipulated facts?
“THE DEFENDANT: Yes, sir.”
Furthermore, in the stipulated facts agreement, Rizo acknowledged his waiver:
“1. Defendant, having previously knowingly, intelligently, freely, and voluntarily waived his right to a jury trial on all charges in the Information filed in this case, now agrees to proceed to bench trial by stipulated facts.”
Rizo does not cite any authority requiring the district court to explain other trial rights to a defendant in order to obtain a knowing and voluntaiy jury trial waiver. Further, our caselaw has upheld jury trial waivers even when the district court fails to explain the particulars surrounding the right to a jury trial. See State v. Lewis, 301 Kan. 349, 377-78, 344 P.3d 928 (2015) (holding jury trial waiver valid although district court did not inform defendant of his attorneys ability to make challenges under Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]); Beaman, 295 Kan. at 859, 862 (holding jury trial waiver valid although the district court did not explain that a 12-person jury would need to unanimously agree on guilt); State v. Clemons, 273 Kan. 328, 340-41, 45 P.3d 384 (2002) (holding jury trial waiver valid although district court did not inform defendant of right to unanimous verdict); see also State v. Savage, No. 112,882, 2015 WL 8590269, at *5-7 (Kan. App. 2015) (unpublished opinion) (holding jury trial waiver valid despite defendants argument that district court failed to clearly distinguish between jury trial, bench trial, and the use of stipulated facts). Certainly, then, we are satisfied that under the facts and circumstances in this case, Rizo s jury trial waiver was knowing and voluntary.
Rizo, however, argues that the jury trial waiver colloquy was inadequate to inform him of the other trial rights he would waive if he proceeded to a bench trial on stipulated facts as opposed to a bench trial where evidence was presented. Rizo argues the district court failed to advise him that by proceeding on stipulated facts, he waived the right to cross-examine witnesses, compel the appearance of favorable witnesses, appeal adverse evidentiary rulings, and appeal an alleged violation of his Fifth Amendment rights.
Rizo’s first, and most glaring, hurdle is that his argument does not comport with the evidence in the record. Before the case proceeded on stipulated facts, the State and the defense presented the district court with the stipulated facts agreement, signed by Rizo, which specifically provided:
“2. As part of tliis agreement, defendant informs the Court of his choice not to testify in his own defense, to waive confrontation of the State s witnesses and evidence, and to allow the Court to accept as true the facts set forth in the following exhibits and stipulations!.]
“. . . Defendant specifically withdraws any objection to the Courts admission and consideration of his post-Miranda statements!.]”
At the State’s request, the district court held a colloquy with Rizo about the stipulated facts agreement and additional stipulations. Pointedly, Rizo s brief fails to acknowledge or discuss this colloquy. At oral argument, defense counsel conceded that we should consider the district courts verbal exchange with Rizo, in addition to the submitted written documents, when determining tiré adequacy of the district court’s actions. But counsel nevertheless maintains that the district court’s actions were insufficient to ensure Rizo understood the rights he was waiving. We disagree.
Before allowing the trial to proceed under the stipulated facts agreement, tire district court judge came off the bench and talked with Rizo. The judge confirmed that Rizo had, in fact, signed both the stipulated facts agreement and die additional stipulations; that Rizo had ample time to consult with his counsel and obtain answers to any questions he had; and that it was Rizo’s own decision to sign both documents. Rizo cites no authority to support his claim that his rights were insufficiently protected by the district court, and we find that argument to be unsupported and unpersuasive.
This court’s holding in White v. State, 222 Kan. 709, 568 P.2d 112 (1977), undermines Rizo’s theory. The White court clarified that a bench trial on stipulated facts is not the same as a guilty plea and does not require the district court to employ the K.S.A. 22-3210 procedure for accepting a guilty plea. 222 Kan. at 712-13. “We know of no case or statute holding that a trial court must interrogate and advise a defendant, who is represented by counsel, before accepting and approving stipulations as to the evidence, and we are not prepared to initiate such a requirement.” 222 Kan. at 713. Here, the district court did, in fact, interrogate and advise Rizo, i.e., the trial judge went above and beyond what was required by law. Moreover, this court has confirmed “ ‘that the accused may waive his right to cross examination and confrontation and that the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.’” State v. Kinnell, 197 Kan. 456, 461, 419 P.2d 870 (1966) (quoting Wilson v. Gray, 345 F.2d 282, 286 [9th Cir. 1965]); see also State v. Laturner, 289 Kan. 727, 739, 218 P.3d 23 (2009) (“[T]he right of confrontation ‘falls into the class of rights that defense counsel can waive through strategic decisions, such as choosing whether and how to conduct cross-examination or by stipulating to the admission of evidence. [Citation omitted.]’”) (quoting Hinojos-Mendoza v. People, 169 P.3d 662, 669 [Colo. 2007]).
In sum, we hold that the district court in this case obtained a knowing and voluntary jury trial waiver from Rizo and that it did not err in allowing his case to proceed under the stipulated facts agreement.
Motion for Departure Sentence
Rizo argues that no reasonable person could agree with the district court’s denial of his request for a departure. As the person alleging an abuse of discretion, Rizo bears the burden of showing such an abuse. See State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989).
In his brief, Rizo argued for a departure from his felony-murder life sentence. But at oral argument, Rizo’s counsel conceded that no legal authority allowed the district court to depart from his fife sentence. This concession is in line with our recent decision in State v. Nguyen, 304 Kan. 420, Syl. ¶ 2, 372 P.3d 1142 (2016), where we held that “K.S.A. 2015 Supp. 21-6806(c) does not give district courts discretion to depart from a life sentence for felony murder.” Therefore, the district courts refusal to depart from the life sentence for felony murder is affirmed.
Because of that legal deficiency, counsel attempted to pivot and to transform Rizos claim into a challenge to the district court’s refusal to depart from the on-grid sentences. But that tack runs head-on into a jurisdictional barrier.
Whether jurisdiction exists is a question of law over which we have unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
The revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2015 Supp. 21-6801 et seq., defines a defendants right to appeal from his or her sentence. K.S.A. 2015 Supp. 21-6820(c)(l) provides that “the appellate court shall not review: (1) Any sentence that is within tire presumptive sentence for the crime.” The KSGA defines “ presumptive sentence’ ” as “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the offender’s current crime of conviction and the offender’s criminal history.” K.S.A. 2015 Supp. 21-6803(q). Consequently, with respect to Rizos sentences that are derived from the KSGA gxid there is no appellate jurisdiction.
We do note that on one of the counts Rizo was sentenced to tire aggravated number in the applicable grid block. State v. Ross, 295 Kan. 1126, 1135-36, 289 P.3d 76 (2012), found that this court lacked jurisdiction to consider a similar scenario. There, we stated that ‘“[u]nder K.S.A. 21-4721(c)(l), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block.’ ” 295 Kan. at 1135 (quoting State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 [2008]); see also State v. Huerta, 291 Kan. 831, 835, 247 P.3d 1043 (2011) (“Merely moving for a departure sentence does not grant the right of appeal to a defendant, if the result of the motion is a presumptive sentence.”). Although Ross additionally held that this court has jurisdiction to consider whether tire district court abused its discretion in running his felony-murder sentence consecutive to his grid sentence, 295 Kan. at 1136-38, Rizo does not make that argument; therefore, it is deemed waived and aban doned. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (“an issue not briefed is deemed waived or abandoned”).
In short, this court has no jurisdiction to consider Rizos departure issue and that claim must be dismissed.
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Denied.
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The opinion of the court was delivered by
Rosen, J.:
Jeanna Cheney appeals the Court of Appeals’ decision affirming the district court’s award of residential custody of her daughter, Justine Poore, to Justine’s father, Zachary Poore. Like the Court of Appeals, we conclude that the district court erred in applying K.S.A. 2013 Supp. 23-3207(b) (dividing the residency of full siblings between their parents) to the residential custody determination before it. But, unlike the Court of Appeals, we cannot overlook this error. The district court’s memorandum decision shows that the error led to the district court’s decision to award residential custody of Justine to Zachary. Accordingly, we reverse the district court’s residential custody award and remand the case to the district court so it can make findings of fact and conclusions of law consistent with the correct legal standards.
Facts
Jeanna does not challenge the statement of facts contained in the Court of Appeals’ opinion. A review of the record on appeal confirms the statement’s accuracy. Accordingly, that section of the Court of Appeals’ opinion is quoted in full below.
“Jeanna and Zachary started a relationship in March 2006. At the time they began the relationship, Jeanna was pregnant with another man’s child. That child, Jocelyn, was bom in November 2006, and the biological father’s name was not put on the birth certificate. Zachary acted as Jocelyn’s father from the time she was bom.
“In December 2009, Jeanna gave birth to Zachary’s child, Justine. The parties resided together with both children in Colby, Kansas, and later in McDonald, Kansas, from the summer of2006 until the end of their relationship in September 2012. During the course of the relationship, the parties contemplated separating and actually did separate several times. At one point while the parties were living together, Jeanna found a suicide note written by Zachary. He was later found in tire middle of a field with his gun. Zachary testified that he did not bring any ammunition with him to the field and that he wrote the note because he wanted to scare Jeanna; he never intended to kill himself. Jeanna testified that Zachary attempted to kill himself on several occasions.
“After this incident, the parties attended counseling. Jeanna ultimately was diagnosed as bipolar and placed on a variety of medications. Jeanna’s mother and brother testified that Jeanna was sad, depressed, tired, and unmotivated when on these medications. Jeanna’s sister testified that Jeanna was a‘zombie’ and was sad, nervous, and withdrawn when on the medications. Zachary testified that all Jeanna did when she was not at work was sleep. He also said Jeanna would drink once or twice a week while on the medication. Jeanna admitted she drank at least once a week and drank excessively at least once a month, even though she was aware she should not mix alcohol with her medication.
“In September 2012, Jeanna voluntarily admitted herself to Valley Hope for detoxification and counseling for polysubstance abuse. The counselor said Jeanna chose to endure withdrawal symptoms rather than take medication to help with the detoxification process and was very motivated to recover because of her children. She said Jeanna was committed to her future and recovery when she left Valley Hope in September 2012 and appeared to have been very successful in continuing care after her discharge.
“The children stayed with Zachary in September 2012 while Jeanna was at Valley Hope. During that time, Zachaiy met his current fiancee Wanda McCain and began a relationship with her. Jeanna testified that while she was at Valley Plope, she called the children, one of whom said they were watching television with their new mommy.’ Zachaiy, however, testified that the children said Wanda, not ‘new mommy.’
“After Jeanna left Valley Hope, both children lived with Jeanna at her mother’s house. In October 2012, Jeanna filed a petition to establish Zachary’s paternity and a motion requesting temporaiy custody of Justine. The district court granted Jeanna temporaiy custody of both children subject to Zachary’s right to reasonable parenting time. Zachaiy filed an answer and counterpetition requesting residential custody of Justine and a continuing relationship with Jocelyn.
“On January 4, 2013, the parties agreed to an amended temporaiy order, pursuant to which Jeanna had residential custody of both children and Zachary had parenting time with them.
“The trial, was held on May 21, 2013. There were witnesses who testified that Jeanna and Zachaiy were devoted to the children, kept them safe, and made them a priority. There were also witnesses who testified to the contrary. Particularly relevant to the legal issue presented on appeal, several witnesses testified about the effect of Jeanna and Zachary’s separation on Jocelyn:
“• Jeanna’s brother testified that after Jocelyn found out Zachaiy was not her father, there was a rift between Jocelyn and Justine, as well as between Justine and Jeanna.
“• Jeanna’s sister testified Jocelyn felt like her father did not love her and felt like an outcast because Zachary and Justine shared secrets without her.
“• Jeanna testified that Jocelyn told her Justine and Zachaiy were hanging out a lot and she did not feel welcomed.
“• Zachary’s mother testified that Jocelyn said she was going to live with Jeanna so that Jeanna would not be lonely while Justine was living with daddy.
“• Zachary testified Jocelyn told him that she wanted to live with Jeanna so Jeanna was not so lonely. He further testified that Justine told him every weekend that she wanted to live with him because she got ‘treated nicer.’
“At tire close of evidence, the district judge made a finding—as requested in the petition—that Zachary was the biological father of Justine. Thereafter, Jeanna stated that the only issue remaining for the judge to decide was that of parenting time related to Justine. Jeanna specifically noted that she would object to the judge making any findings regarding Jocelyn. In response, the judge advised the parties that he would taire the matter under advisement. In so doing, the judge commented, 1 think it’s too bad, because I think it’s in Jocelyn’s best interests to remain with her sister, and obviously, [Zachary] has parenting rights to her sister. So there’s no way I can keep them together, unless I have legal authority to order it.’ The judge said that before Jeanna indicated that she would lodge an objection to any findings regarding Jocelyn, he was going to grant custody to Zachary when school’was out during the summer and to Jeanna when school was in session with parenting time for both parties, but only if the children could be together.
“In a memorandum decision filed May 28, 2013, the district court found that Zachary was the natural biological father of Justine, that both parents dearly loved the children, and that both were fit to be awarded the joint legal custody of Justine. The decision also noted that Zachary was the only father Jocelyn had ever known but that he had no standing to request parenting time with her because he was not the biological father or stepparent. The court held, however, that it could divide custody of the children in an exceptional case [see K.S.A. 2013 Supp. 23-3207(b)] and that this was an exceptional case. The court went on to state:
‘That to have both [Jocelyn] and [Justine] principally reside with [Jeanna] with only [Justine] allowed to singly leave the home to exercise visitation with [Zachary] who is the only father both girls know would be less favorable and more stressful than to have [Justine] principally reside with [Zachary] and then return to [Jeanna’s] home to exercise visitation with [Jeanna] and her older sister.’
“Finding it was in the best interests of Justine to do so, the court granted residential custody of Justine to Zachary.” Cheney v. Poore, No. 110,007, 2014 WL 1796284, at “1-3 (Kan. App. 2014) (unpublished decision).
On appeal, Jeanna argued that substantial competent evidence did not support the district court’s finding that this case was an “exceptional case” justifying the divided residency of Jocelyn and Justine. See K.S.A. 2013 Supp. 23-3207(b) (“In an exceptional case, the court may order a residential arrangement in which one or more children reside with each parent and have parenting time with the other.”). Specifically, Jeanna contested the court’s finding that having Jocelyn and Justine reside with her would create a less favorable and more stressful situation than compared to having only Jocelyn reside with her and Justine reside with Zachary.
Zachary responded by arguing that die district court’s custody order did not result in the divided residency of the two girls because he was not Jocelyn’s biological father and, thus, could not have been granted residential custody of both Jocelyn and Justine. Accordingly, he argued that the district court was not required to make an exceptional case finding under K.S.A. 2013 Supp. 23-3207(b) because that statute was only applicable to when the residency of full siblings is being divided between the children’s parents. Zachary contended that because Justine was the sole child of both him and Jeanna and only Justine’s residential custody was at issue, K.S.A. 2013 Supp. 23-3207(b) should have had no bearing on the court’s decision. Despite the district court’s alleged error in applying the statute, Zachary argued that the district court’s residency determination could still be affirmed on appeal because substantial competent evidence supported the district court’s finding that awarding him residential custody of Justine was in her best interests.
Based on a prior unpublished decision in In re Marriage of Taylor, No. 106,143, 2012 WL 1352867 (Kan. App. 2012), tire Court of Appeals agreed with Zachary that the language of K.S.A. 2013 Supp. 23-3207(b) was inapplicable to the situation here given the fact that Zachary was not Jocelyn’s biological father and, thus, did not have any custodial parental rights related to her. Accordingly, the Court of Appeals concluded that the district court could only rule on the custody and residential placement of Justine, the sole child of both Jeanna and Zachary. Cheney, 2014 MOL 1796284, at *3-4.
Despite determining that the district court erred in applying K.S.A. 2013 Supp. 23-3207(b) to this case, the Court of Appeals concluded that the district court, as evidenced by its memorandum decision, applied the correct legal standards found in K.S.A. 2013 Supp. 23-3201 and K.S.A. 2013 Supp. 23-3203 for awarding residential custody. The panel proceeded to review the evidence presented at trial and concluded that substantial competent evidence supported the district court’s determination that awarding custody of Justine to Zachaiy was in Justine’s best interests. Cheney, 2014 WL 1796284, at *3-4.
We granted Jeanna’s petition for review to determine whether the Court of Appeals properly concluded that K.S.A. 2013 Supp. 23-3207(b) was inapplicable to the residential custody dispute at issue in this case and whether the district court abused its discretion by awarding Zachaiy custody of Justine.
The Divided Residency Statute
Whether K.S.A. 2013 Supp. 23-3207(b) applies to this case raises an issue involving statutory interpretation—a question of law subject to unlimited review. See State v. Frierson, 298 Kan. 1005, 1010, 319 P.3d 515 (2014). The most fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court’s first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history. 291 Kan. at 216.
K.S.A. 2013 Supp. 23-3207 states in pertinent part:
“After making a determination of the legal custodial arrangements, the court shall determine the residency of die child from the following options, which arrangement the court must find to be in the best interest of the child. The parties shall submit to the court either an agreed parenting plan or, in the case of dispute, proposed parenting plans for the court’s consideration. Such options are:
(a) Residency. The court may order a residential arrangement in which the .child resides with one or both parents on a basis consistent with the best interests of the child.
(b) Divided residency. In an exceptional case, the court may order a residential arrangement in which one or more children reside with each parent and have parenting time with the other.” (Emphasis added.)
The plain language of K.S.A. 2013 Supp. 23-3207(b) clearly contemplates a situation where the residency of multiple children from the same couple is being divided, i.e., the children are full siblings and their residency is being divided between their parents. This undei'standing of tie meaning of subsection (b) is reflected in In re Marriage of Williams, 32 Kan. App. 2d 842, 848, 90 P.3d 365 (2004), where the court construed an earlier version of K.S.A. 2013 Supp. 23-3207(b) with the same language and concluded that a “district court does not have the discretion to divide the custody of children of the same parents where there are no exceptional circumstances.” (Emphasis added.) See also LaGrone v. LaGrone, 238 Kan. 630, 635, 713 P.2d 474 (1986) (Lockett, J„ concurring in part, dissenting in part) (“Where there are no exceptional circumstances, the children of divorced or unwed parents, especially those children of tender years, should not be separated by awarding custody of one child to the mother and custody of the other child to the father. F amily ties between children of the same parents should not be treated lightly.”); see 2 Elrod & Buchele, Kansas Family Law § 12.33, p. 200 (1999) (construing earlier version of K.S.A. 2013 Supp. 23-3207[b], stating “ ‘[sjplit’ or ‘divided’ custody can occur when there are two or more children and each parent receives primary custody of one or more children” and stating that “[i]f the children are from different marriages and are half siblings or stepsiblings, there may not be as strong a reason to keep them together”).
As mentioned above, the panel here relied on In re Marriage of Taylor, an unpublished Court of Appeals decision, to conclude that K.S.A. 2013 Supp. 23-3207(b) is simply inapplicable to the divided residency of half siblings. In In re Marriage of Taylor, the panel found that the legislature did not intend to include half siblings and stepsiblings within the scope of the divided residency statute (then K.S.A. 2010 Supp. 60-1610[a][5][Bj). The Court of Appeals noted that in other statutes, the legislature had not hesitated to use the terms stepparent, stepbrother, stepsister, or half siblings when it intended to include those individuals within the scope of the statutes. In re Marriage of Taylor, 2012 WL 1352867, at *2; see K.S.A. 2013 Supp. 21-5604(b) (aggravated incest statute specifically including biological, step or adoptive relatives, and half siblings); K.S.A. 2013 Supp. 21-5926(e) (Medicaid fraud statute defining family member to include biological, step or adoptive relatives, and half siblings); K.S.A. 2013 Supp. 23-3301 (allowing stepparents and grandparents to be granted visitation rights of minor child to divorce cases); K.S.A. 2013 Supp. 44-508(c)(2) (Workers Compensation Act statute defining members of a family to include stepparents, stepchildren, and stepsiblings); K.S.A. 2013 Supp. 72-1046b(a)(3) (school transportation statute defining member of family to include half siblings and stepsiblings).
Notwithstanding its legal conclusion that K.S.A. 2010 Supp. 60-1610(a)(5)(B) does not require district courts to make findings of exceptional circumstances before dividing the residency of half siblings or stepsiblings, the Taylor panel held that separating a child from a half sibling or stepsibling is still a factor that should be considered in a custody or residency determination, keeping in mind that the most important factor is the best interests of the child. See In re Marriage of Taylor, 2012 WL 1352867, at *2. In support of this holding, the panel noted that K.S.A. 2010 Supp. 60-1610(a)(3)(B)(iv) (now K.S.A. 2013 Supp. 23-3203[d]) recognizes that one factor in determining child custody and residency is the “ ‘interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests.’ ” In re Marriage of Taylor, 2012 WL 1352867, at *2. The Court of Appeals noted that half siblings and stepsiblings— especially those residing with the child and a parent—may have a significant impact on the child’s life. Thus, if such a relationship exists, it must be taken into consideration by the court in determining the child’s residency, even though the most important factor to consider is the best interests of the child. In re Marriage of Taylor, 2012 WL 1352867, at *2.
The analysis set forth in In re Marriage of Taylor regarding the prior version of K.S.A. 2013 Supp. 23-3207(b) is sound. We adopt its reasoning in concluding that the statute does not require a district court to make an exceptional case finding before rendering a decision that will result in dividing the residential custody of half siblings. Consequently, we agree with tire Court of Appeals that tire statute was simply inapplicable in determining the residential custody of Justine.
Abuse of Discretion
Jeanna argues that the Court of Appeals, despite concluding that the district court erred in applying K.S.A. 2013 Supp. 23-3207(b), went astray when it affirmed the district court’s decision to award Zachary residential custody of Justine. Jeanna contends that the district court’s decision was based solely on its incorrect belief that the case was an “exceptional case” under K.S.A. 2013 Supp. 23-3207(b), which compelled the district court to award residential custody to Zachary.
In Harrison v. Tauheed, 292 Kan. 663, Syl. ¶ 1, 256 P.3d 851 (2011), this court stated:
“When an initial custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The district court is in the best position to make the inquiry and determination, and, in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal.”
We have stated that there are three ways in which a district court can abuse its discretion: (1) when no reasonable person would take the view adopted by the district court; (2) when a ruling is based on an error of law; or (3) when substantial competent evidence does not support a district court’s finding of fact on which 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); see also Frazier v. Goudschaal, 296 Kan. 730, 755, 295 P.3d 542 (2013) (noting that Ward’s abuse of discretion standard applies to appellate review of district court’s order regarding custody and parenting time).
Various provisions of K.S.A. 2013 Supp. 23-3201 et seq. guide a district court’s discretionary determination of a child’s custody, residency, visitation, or parenting time. When a district court is called upon to determine the custody or residency of a child, K.S.A. 2013 Supp. 23-3201 requires the decision be made “in accordance with the best interests of the child.” See also In re Marriage of Whipp, 265 Kan. 500, Syl. ¶ 1, 962 P.2d 1058 (1998) (“The paramount question for determining custody as between die parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The district court must determine which parent will do a better job of rearing the children and provide a better home environment.”)- To aid in making that decision, K.S.A. 2013 Supp. 23-3203 instructs that a “court shall consider all relevant factors, including, but not limited to:
“(a) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
“(b) the desires of the child’s parents as to custody or residency;
“(c) the desires of the child as to the child’s custody or residency;
“(d) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
“(e) the child’s adjustment to the child’s home, school and community;
“(f) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the odier parent;
“(g) evidence of spousal abuse;
“(h) whether a parent is subject to die registration requirements of the Kansas offender registration act, K.S.A. 22-4901 etseq., and amendments thereto, or any similar act in any other state, or under military or federal law;
“(i) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 2013 Supp. 21-5602, and amendments thereto;
“(j) whetiier a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901 et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; and
“(k) whether a parent is residing widi an individual who has been convicted of abuse of a child, K.S.A. 21-3609, prior to its repeal, or K.S.A. 2013 Supp. 21-5602, and amendments thereto.”
The district court’s memorandum decision shows that after the court found that both Zachary and Jeanna were fit parents and awarded them joint legal custody of Justine, the court proceeded to determine the issue of residential custody. In doing so, the court acknowledged that under K.S.A. 2013 Supp. 23-3201, residency is to be determined in accordance with the best interests of the child and proceeded to quote in full all the factors listed in K.S.A. 2013 Supp. 23-3203 as considerations in making this determination. Notably, tire court also quoted in full K.S.A. 2013 Supp. 23-3207, which describes the various residential custody arrangements that a court can establish. As noted above, K.S.A. 2013 Supp. 23- 3207(b) states that in exceptional cases, the residency of two or more full siblings may be divided between their parents.
After finding that Zachaiy was Justine’s natural father and that he did not have standing to request parenting time with Jocelyn, the district court made the following findings:
“19. That although the Court recognizes and agrees that only in an exceptional case should the custody of minor children be divided, the Court finds this to be an exceptional case.
“20. That to have both Jocelyn Cheney and Justine Poore principally reside with [Jeanna] with only Justine Poore allowed to singly leave the home to exercise visitation with [Zachaiy] who is the only father both girls know would be less favorable and more stressful than to have Justine Poore principally reside with [Zachary] and then return to [Jeanna’s] home to exercise visitation with [Jeanna] and her older sister.
“21. The Court therefore finds that it is in the best interests of Justine Poore to grant her residential custody to [Zachary].”
Paragraph 19 of the memorandum decision clearly shows that the district court mistakenly believed that K.S.A. 2013 Supp. 23-3207(b) applied to this case—a residential custody dispute involving only one child with an older half sibling. Based on the district court’s misunderstanding of the statute, the court declared this case to be an “exceptional case” and then proceeded to make findings in paragraph 20 to support its exceptional-case conclusion. The district court then relied on these findings to conclude in paragraph 21 that it was in the best interests of Justine to reside with Zachary.
It is apparent from the district court’s memorandum decision that it applied tire wrong legal standard (K.S.A. 2013 Supp. 23-3207[b]) to determine the issue before it and that this mistake shaped its analysis of the facts which, in turn, led to its best interests determination. Admittedly, earlier in the memorandum decision, the district court quoted the correct legal standards (K.S.A. 2013 Supp. 23-3201 and K.S.A. 2013 Supp. 23-3203) for determining residential custody in this case. But, unlike the Court of Appeals, we cannot divine from the memorandum decision that the district court actually applied these standards to the issue before it or would have reached the same result if it had.
What is clear from the memorandum decision is that the district court abused its discretion by basing its decision to award residen tial custody of Justine to Zachary on a misapplication of K.S.A. 2013 Supp. 23-3207(b) (i.e., the court’s ruling resulted from an error of law). Accordingly, we reverse the Court of Appeals’ decision affirming the district court and remand the case back to the district court so it can malee findings of fact and conclusions of law consistent with the correct legal standards found in K.S.A. 2013 Supp. 23-3201 and K.S.A. 2013 Supp. 23-3203.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.
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Arnold-Burger, J.:
On a dark night, Jeff Nusser decided to jaywalk across Main Street. Before he reached the other side, Robby Heironimus struck him with the right brake pedal of his motorcycle. Heironimus left the scene but turned himself into the police the next day when he realized that he hit Nusser. The State charged him with five offenses stemming from this incident, and a jury convicted him of all charges. Heironimus raises several issues on appeal. Because the charges of leaving the scene of an injury accident and failure to give information following an accident are multiplicitous, we are required to reverse his conviction for failure to give information and vacate his sentence. Likewise, Heironimus’ conviction for failure to report an injury accident must be reversed because the statute under which he was charged was repealed at the time of the offense. Finally, because general criminal intent is a necessary element of leaving the scene of an injury accident and the court committed reversible error by not including this element in its instructions to the jury, we must reverse Heironimus’ conviction for leaving the scene of an injury accident and remand for a new trial. Heironimus does not challenge his remaining convictions for driving on a suspended license and illegally displaying his vehicle tag, so those convictions stand.
Factual and Procedural History
One night in May 2012, just after 9 p.m., Nusser decided to walk from his apartment to the Hastings store in Hutchinson. He was wearing a black shirt, black pants, black shoes, and had headphones in his ears. He also had long dark hair. At one point during his walk, he elected to cross Main Street at a place not marked by a crosswalk. He looked both ways, ensured that he saw no headlights in either direction, and began to cross the street. He crossed the southbound lanes of traffic successfully and paused in the middle of the street to double-check for any northbound headlights. The nearest headlights he could see were at 17th Street, at least 2 blocks south of his position, so he proceeded to cross tire northbound lanes of traffic.
As Nusser crossed the street, a motorcycle, driven by Heironi-mus, struck him. Nusser remembered “hearing the engine and seeing a flash of the headlight right before [he] felt the impact.” The accident resulted in the amputation of his leg 6 to 8 inches down from the knee and a permanently dislocated bone in his left hand.
At roughly the same time, Holly Zizumbo and her son were in an automobile traveling in tire area. She and several motorcycles all waited together at a red light at the intersection of 17th and Main. Her headlights were on, and street lights illuminated the area. She described the motorcycles in her lane as “Harley-type” cruiser-style bikes and the motorcycles in the other lane as “crotch rockets.” Of tire two men driving Harley-style bikes, one wore a bandanna. Zizumbo noticed that his motorcycle also had what she termed “ape hanger” handlebars. When the light changed, the motorcycles accelerated, “racing in front of’ Zizumbo and pulling far away from her despite the fact that she accelerated to 40 miles per hour. She estimated their speed at 60 miles per hour. As she drove, she witnessed what she “thought was somebody on the motorcycle wrecking.” She testified that a body “[flew] up in the air,” over the head of one of the Harley-style motorcyclists, “and hit the ground.” The motorcycles all left the scene, but Zizumbo parked and discovered Nusser lying on the ground. His leg injury was severe and “there was pieces of bone all over the ground.”
The two drivers of the crotch-rocket style motorcycles, Rane Daines and Daulphus Koeppen, also witnessed the accident. Dai-nes explained that the driver with the ape hanger handlebars kept “[r]ewing his motor up like he was wanting to race.” When the light changed to green, Daines witnessed the motorcycle driving “erratically” and fast enough that he and Koeppen “wasn’t even going to try and catch him.” Daines and Koeppen both said that die motorcycle in question suffered a “speed wobble” ahead of them. Daines saw a man “flying in the air,” while Koeppen saw “a kid on the side of the road.” But both men said that the driver of the motorcycle with the ape hangers wore a bandanna. Both witnesses also claimed that they later saw that same man stop “in front of the Fairgrounds” to inspect his motorcycle.
Nearly 24 hours after the accident, Heironimus called the Hutchinson Police Department and informed the duty officer that he believed he hit something while riding his motorcycle the night before. When an officer arrived at his home, Heironimus said he remembered feeling something hit his right foot but explained that he only called in after reading an article and speaking to others about the accident. An examination of Heironimus’ motorcycle revealed a dent on the bracket around the brake pedal, which Hei-ronimus admitted “was bigger now than what it was before.” Hei-ronimus confirmed that he wore a bandanna on the night of the accident. He also told the officer that although he did not stop when something struck his foot, “the pain was severe enough to get his attention.” Nusser’s DNA was not recovered from Heiron-imus’ motorcycle, although Heironimus admitted he had washed the motorcycle that day.
Based on this sequence of events, the State charged Heironimus with five offenses: leaving the scene of an injury accident, failure to report an injury accident, driving while suspended, failure to give information, and illegal display of tag. The case proceeded to jury trial.
At the close of evidence, the parties and the district court discussed the mental state required to commit leaving the scene of an injury accident, failure to report an injury accident, and failure to give information. Heironimus contended that because the statutes in question lacked a clear legislative intent to impose absolute liability, tire complaint and jury instructions needed to include a mental state. The State, which had amended the complaint to remove the word “intentionally” a few days earlier, contended that the statutes in question imposed absolute liability. The district court agreed with the State and denied Heironimus’ request to include mental states in the jury instructions.
The jury convicted Heironimus of all five offenses. The district court sentenced him to 18 months of probation with a total underlying sentence of 24 months’ imprisonment. Heironimus appealed.
Analysis
The offenses of leaving the scene of an injury accident and failure to give information are multiplicitous.
Heironimus first contends that leaving the scene of an injury accident and failure to give information are multiplicitous. Specifically, he argues that because one element of leaving the scene concerns the driver’s failure to stay and provide his required information, failure to give information is a lesser included offense. Whether two convictions are multiplicitous is a question of law over which this court exercises unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
Multiplicity is defined as “the charging of a single offense in several counts of a complaint or information” and violates both the United States and Kansas Constitutions by imposing multiple punishments for a single offense. 281 Kan. 453, Syl. ¶ 11. Although our Kansas courts long used what is commonly referred to as the “same-elements test” to examine these issues, our Kansas Supreme Court recently determined that a statutory test for multiplicity has supplanted this traditional two-step analysis. State v. Hensley, 298 Kan. 422, 436, 313 P.3d 814 (2013). This statutory test provides that “the defendant may be convicted of either the crime charged or a lesser included crime, but not both” and provides four potential definitions of lesser included crime. K.S.A. 2011 Supp. 21-5109(b). Heironimus argues that failure to give information is a lesser included crime under the second of these definitions, as it is “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 2011 Supp. 21-5109(b)(2).
K.S.A. 2011 Supp. 8-1602(a) provides:
“The driver of any vehicle involved in an accident resulting in injury to, great bodily harm to or death of any person or damage to any attended vehicle or property shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, but shall then immediately return to and in every event shall remain at the scene of the accident until the driver has fulfilled the requirements of K.S.A. 8-1604, and amendments thereto.”
The penalty imposed for leaving the scene of an accident depends on the damage the accident causes. K.S.A. 2011 Supp. 8-1602(b). Leaving the scene of an accident that caused great bodily harm is a level 8 person felony. K.S.A. 2011 Supp. 8-1602(b)(3).
As it happens, K.S.A. 2011 Supp. 8-1604 is the statute under which failure to give information is charged. The relevant section of that statute requires that the driver of a vehicle involved in an accident must provide specific information “to any police officer at the scene of the accident or who is investigating the accident” and “immediately make efforts to determine whether any person involved in such accident was injured or killed” and render aid to those hurt. K.S.A. 2011 Supp. 8-1604(a).
Heironimus’ argument regarding the multiplicitous nature of these two offenses is based entirely on City of Overland Park v. Estell, 8 Kan. App. 2d 182, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983). There, the defendant was convicted of violating three sections of a municipal traffic ordinance. He argued that these sections, which this court described as being “in substantial conformity” with the then-current versions of leaving the scene of an injury accident, failure to give information, and failure to report an injury accident, were multiplicitous because the latter two constituted lesser included crimes of the first. 8 Kan. App. 2d at 185.
After studying the ordinance sections involved, this court agreed with the defendant. 8 Kan. App. 2d at 185. The court reasoned that section 23 of the ordinance—the section similar to what is now K.S.A. 2011 Supp. 8-1602—required that a driver remain on the scene of an accident until that driver supplied all the information required by section 25—the section similar to K.S.A. 2011 Supp. 8-1604. 8 Kan. App. 2d at 185. Because the defendant’s violation of section 23 stemmed from his failure to supply the information listed in section 25, the court determined that
“the elements necessary to prove a violation of section 25 were identical to those required to prove a violation of section 23. As a violation of section 25 was necessarily proved by the proof of a violation of section 23, section 25 was a lesser included offense of that proscribed by section 23.” 8 Kan. App. 2d at 185.
In other words, because the defendant’s conviction for leaving the scene of an injury accident relied on his failure to give information, failure to give information constituted a lesser included crime and that conviction was reversed. 8 Kan. App. 2d at 185.
The State concedes that Estell controls. Here, Heironimus clearly failed to stop and remain at the scene of the accident until he fulfilled the requirements of K.S.A. 2011 Supp. 8-1604. See K.S.A. 2011 Supp. 8-1602(a). But because his failure to comply with those requirements is an essential element of the offense, his failure to give information is a lesser included crime of leaving the scene of an injuiy accident. As such, he cannot be convicted of both crimes. See K.S.A. 2011 Supp. 21-5109(b). Therefore, like in Estell, his conviction for failure to give information must be reversed and his sentence vacated. See 8 Kan. App. 2d at 188.
General criminal intent is a necessary element of leaving the scene of an injury accident.
Heironimus next argues that the district court committed an error of law by allowing the State to prosecute him without proving his intent. Heironimus contends that knowledge of an accident is an essential element of leaving the scene of an injury accident and that the State needed to prove that element. By allowing the State to amend this element out of the complaint and failing to instruct the jury regarding that mental state, Heironimus argues, the district court committed a reversible error of law.
Because this question concerns the interpretation of a statute, this court exercises unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91 (2014).
Heironimus’ argument relies heavily on our Kansas Supreme Court’s holding in State v. Wall, 206 Kan. 760, 482 P.3d 41 (1971). There, the court examined sections 518 and 520 of the traffic code—or what are now K.S.A. 2011 Supp. 8-1602 and 8-1604, respectively—and explained:
“Section 518 specifically relates to section 520, the clear intent of the two being to require such a driver to stop and then furnish specific information and appropriate aid for the benefit of any occupant of the other vehicle who may have been injured in the collision. Section 520 prescribes an affirmative course of action to be taken by the driver. Implicit therein must be the element of recognition or awareness on the part of that driver of the fact of collision. We cannot believe the legislature intended a penalty to be imposed for failing to follow that course of action if a driver was in fact unaware of the occurrence of collision. We do not imply an accused must have positive knowledge of the nature or extent of injury resulting from the collision .... We think it sufficient if the circumstances are such as to induce in a reasonable person a belief that collision has occurred; otherwise a callous person might nullify the humanitarian purpose of the statute by the simple act of immediate flight from an accident scene without ascertaining exactly what had occurred.” 206 Kan. at 764.
The year after the offense in Wall occurred, however, the legislature passed several statutes concerning criminal intent and culpable mental states. See K.S.A. 21-3201 (Weeks 1974); K.S.A. 21-3202 (Weeks 1974); K.S.A. 21-3204 (Weeks 1974). These statutes provided, among other things, that “[a] person may be guilty of an offense without having criminal intent if the crime is a misdemeanor and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” K.S.A. 21-3204 (Weeks 1974).
Although the legislature has amended and recodified these statutes over time, it remains that “[i]f the definition of a crime does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.” K.S.A. 2011 Supp. 21-5202(d). Additionally, the legislature is now free to define felony crimes as absolute liability offenses. See K.S.A. 2011 Supp. 21-5203 (“A person maybe guilty of a crime without having a culpable mental state” when tire crime is “a felony and the statute defining the crime clearly indicates a legislative purpose to impose absolute liability for the conduct described.”).
Application of these concepts to our Kansas traffic offenses is complicated. For example, in Estell, the defendant argued that die district court erred by not instructing die jury regarding his mental state at die time he left die scene of die accident. This court determined that “the offense charged under section 23 of the ordinance, substantially diat proscribed by K.S.A. 8-1602, is an absolute liability offense .when considered in light of’ what is now K.S.A. 2011 Supp. 21-5203. 8 Kan. App. 2d at 187. Although the court reasoned that a defendant could potentially defend against such a charge by showing he or she “had somehow been rendered unaware of the accident” or had been removed from the scene against his or her will, the court also found diose scenarios inapplicable to die facts of the case before it. 8 Kan. App. 2d at 187. This court later applied Estell’s reasoning regarding absolute liability when determining whedier compulsion is a defense to leaving the scene of an accident. See State v. Riedl, 15 Kan. App. 2d 326, 327-29, 807 P.2d 697 (1991).
Citing Estell, Riedl also reiterated that a driver could defend against the charge by showing he or she was rendered unaware of the accident. 15 Kan. App. 2d at 329. This logic runs afoul of the general rule that “[t]he only proof required to convict an individual of an absolute liability offense is diat the individual engaged in the prohibited conduct.” State v. Creamer, 26 Kan. App. 2d 914, Syl. ¶ 1, 996 P.2d 339 (2000). After all, if engaging in the prohibited conduct—that is, leaving the place where an accident occurred— is all that is required to convict an individual of leaving the scene of an accident, die driver’s knowledge of that accident should be irrelevant. Moreover, these cases are decades old and reflect earlier versions of what are now our culpable mental state statutes.
In a recent case concerning issues of search and seizure and hot pursuit, this court appeared to recognize the necessity for some level of mental culpability for this offense. Specifically, the court noted that “[w]hile leaving the scene of an accident reflects a degree of deliberateness uncharacteristic of most traffic violations, that does not distinguish it from the run of misdemeanors requiring at least general criminal intent.” State v. Dugan, 47 Kan. App. 2d 582, 601, 276 P.3d 819 (2012). Of course, this reference is dicta, but it also highlights the inherent difficulty in Estell’s holding.
Moreover, our Kansas Supreme Court has applied the above principles concerning criminal intent and culpable mental state to another traffic-related offense. In State v. Lewis, 263 Kan. 843, 852-58, 953 P.2d 1016 (1998), our Supreme Court considered whether knowledge of one’s status as a habitual traffic violator constituted an essential element of the offense. After first determining that the criminal intent statutes in effect at the time applied to offenses under the traffic code, the court moved on to consider whether the habitual violator offense fell under the exception to the intent requirement. After examining the criminal intent statutes, which the court concluded were “in accord with the ‘contemporary view’ disfavoring strict liability offenses,” the court concluded that the exceptions did not apply and that the habitual violator offense therefore required a culpable mental state. 263 Kan. at 857-58.
Relying entirely on Estell, the State urges this court to find that K.S.A. 2011 Supp. 8-1602 imposes absolute liability under K.S.A. 2011 Supp. 21-5203 and affirm Heironimus’ conviction. However, the plain language of K.S.A. 2011 Supp. 21-5203 and the foregoing analysis preclude such a simple solution. Because the accident in the instant case caused great bodily harm, Heironimus was charged under K.S.A. 2011 Supp. 8-1602(b)(3) and therefore with a felony. K.S.A. 2011 Supp. 21-5203(b) provides that for felonies, liability without a criminal intent can only be imposed when the statute defining the felony offense “clearly indicates a legislative purpose to impose absolute liability.” There is no such clearly indicated legislative purpose in the statute at issue here. See K.S.A. 2011 Supp. 8-1602(a). Additionally, nothing in the statute “plainly dispenses with any mental element.” K.S.A. 2011 Supp. 21-5202(d).
For the first time in oral argument, the State asserted that because K.S.A. 2011 Supp. 8-1602(b)(5) specifically requires that the person know that the accident resulted in injury or death in order to be guilty of a level 5 person felony for leaving the scene, the absence of such a requirement in K.S.A. 2011 Supp. 8-1602(b)(3) makes it clear that no intent is required. We do not find this argument persuasive. K.S.A. 2011 Supp. 8-1602(b)(5) simply increases the penalty if the person knows that injury or death resulted from the accident. This specific knowledge requirement—that injury or death resulted—is necessary to enhance the penalty. It does not speak to the general criminal intent and knowledge that an accident occurred at all. To the contrary, other offenses lacking a mental element, such as possession of firearms on certain government property, clearly announce themselves as absolute liability offenses. See K.S.A. 2014 Supp. 21-6309(a) (“It shall be unlawful to possess, with no requirement of a culpable mental state, a firearm . . . .” [Emphasis added.]). Other examples with similar language concerning the lack of mental state include smoking in enclosed areas or public meetings, illegal ownership or keeping of an animal, and one instance of unlawful conduct of cockfighting. K.S.A. 2014 Supp. 21-6110(a); K.S.A. 2014 Supp. 21-6415(a); K.S.A. 2014 Supp. 21-6417(a)(l).
Because a culpable mental state is required unless the definition of an offense plainly dispenses with that requirement or clearly indicates a legislative purpose to impose absolute liability and K.S.A. 2011 Supp. 8-1602 lacks both these indicators, it is clear that criminal intent must be an element of that offense. As provided by the criminal intent statutes, if a crime lacks a prescribed culpable mental state, “ ‘intent/ ‘knowledge’ or ‘recklessness’ suffices to establish criminal responsibility.” K.S.A. 2011 Supp. 21-5202(e). The State therefore needed to plead and prove that Hei-ronimus intentionally, knowingly, or recklessly left the scene of an injury accident in violation of the requirements of K.S.A. 2011 Supp. 8-1602(a).
Amendment of the complaint to omit the intent requirement did not prejudice Heironimus.
Four days prior to trial, the State amended the complaint against Heironimus to omit its allegation that he intentionally failed to stop his vehicle.
Heironimus insists that this amendment to the complaint prejudiced his defense. Although he attacked the sufficiency of the instruction related to this charge before the district court—an issue that will be addressed next—he did not attack the sufficiency of the complaint below. This court must therefore review his challenge based on the standard first announced in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Under this standard, Heironimus must show that the complaint (1) prejudiced him as he prepared his defense; (2) “impair[ed] his ability to plead the conviction as a bar to a later prosecution”; or (3) limited his substantial rights. State v. Tapia, 42 Kan. App. 2d 615, 621, 214 P.3d 1211 (2009), aff'd 295 Kan. 978, 287 P.3d 879 (2012).
But a review of the record runs directly counter to this claim. Heironimus emphasized his lack of intent at trial. He cross-examined witnesses concerning Nusser’s dark clothes and his continued statements that although he knew he hit something, he only realized he possibly hit a person the day after the accident. In short, nothing suggests that this last-minute change to the complaint prejudiced him.
Failing to instruct the jury that Heironimus intentionally, knowingly, or recklessly left the scene of an injury accident did prejudice Heironimus and was reversible error.
Turning to the jury instruction issue, Heironimus clearly objected to the proposed instructions before the district court. As such, this court must engage in a multistep process to determine whether the district court erred by failing to include the element of intent. Specifically, the court must “ 'use an unlimited review to determine whether the instruction was legally appropriate,’ ” consider whether sufficient evidence supported the instruction, and determine whether the instructional error, if any occurred, was harmless. State v. Smyser, 297 Kan. 199, 203-04, 299 P.3d 309 (2013).
The foregoing analysis demonstrates that including the criminal intent element of the crime charged was not only legally appropriate but required under the circumstances. There is no dispute that sufficient evidence supported giving the instruction, as the State charged Heironimus with the offense in question and Hei-ronimus clearly raised the issue of his knowledge of the accident at trial. Because the instruction was legally and factually appropriate, the question this court must focus on is whether omission of the element at issue is harmless. See State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147 (holding that the omission of an essential element of an offense from the jury instructions is subject to the harmless error test), cert. denied 543 U.S. 982 (2004).
In recent years, our Kansas courts have repeatedly considered the harmlessness of omitted elements. For example, in Daniels, the district court omitted the element of bodily harm from a robbery instruction. Adopting the United States Supreme Court’s test on this issue, our Supreme Court held that “ ‘where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that die jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ ” 278 Kan. at 62. In other words, if the record contains no evidence contesting the omitted element, the omission is harmless. 278 Kan. at 62. Based on this test, the court determined drat the error was harmless due to the overwhelming evidence of bodily harm. 278 Kan. at 62-63.
In State v. Garza, 290 Kan. 1021, 1031-32, 236 P.3d 501 (2010), our Supreme Court applied this test when determining that failure to include the element of the defendant’s age was harmless because there was “no dispute” about his age at trial. But in anodier case, when the district court failed to instruct the jury on an essential element of fleeing or attempting to elude law enforcement— namely, the element defining the five moving violations the driver committed while fleeing—our Supreme Court reversed the con viction because it could not determine whether the jury correctly found five moving violations. State v. Richardson, 290 Kan. 176, 179, 183-84, 224 P.3d 553 (2010).
Here, the issue of Heironimus’ intent is indeed in dispute. The officer who talked to Heironimus testified that Heironimus believed he might have struck something while riding his motorcycle but never acknowledged that he hit Nusser. In fact, according to the officer, Heironimus stated that he only learned of the accident when he read an article the next day. He also essentially turned himself in when he realized his involvement. The only evidence of any sort of impact was the slight additional damage to Heironimus’ brake pedal, and there was no blood or gore on the motorcycle. The other witnesses, including those who drove behind Heironi-mus, admitted generally that Nusser wore dark clothes and that they only noticed him after the accident occurred. This testimony runs counter to the claim that Heironimus intentionally left the scene of the accident. It therefore cannot fairly be said that the omitted element was supported by overwhelming evidence. Unlike in Daniels and Garza, it is possible that a jury properly instructed on all elements could have found that Heironimus lacked the required mental element and acquitted him. As such, the error in this case is not harmless.
In conclusion, our Kansas criminal intent statutes and caselaw make clear that a culpable mental state is an essential element of leaving the scene of an injury accident. Although the late amendment to the complaint removing that element failed to prejudice Heironimus, excluding that element from the jury instructions constituted reversible error. Heironimus’ conviction on this count must be reversed and remanded for new trial.
Heironimus’ conviction for failure to report an injury accident must be reversed because the statute under lohich he was charged was repealed.
Heironimus next argues that his conviction for failure to report an injury accident must be reversed because the legislature repealed the statute criminalizing this conduct in July 2011. Because the statute no longer existed at the time he struck Nusser, Heiron- imus contends that he could not have legally been convicted of this offense.
It is a well-settled statement of law that the “ ‘criminal statutes in effect at the time of the offense control the charge as well as the sentence resulting therefrom.’ ” State v. Edwards, 28 Kan. App. 2d 379, 380, 15 P.3d 855 (2000). Here, failure to report an injury accident, once codified at K.S.A. 2010 Supp. 8-1606, no longer existed in May 2012. See K.S.A. 2011 Supp. 8-1606. As such, at tire time Heironimus failed to report the accident at issue in this case, failing to report such an accident was not a criminal offense.
The State concedes this issue, admitting that it looked up the charging language on what it believed to be the Kansas Legislature’s website. A review of the website in question reveals that the State in fact relied on a now-defunct website not run by the Kansas government. Regardless, Heironimus’ conviction on this count must be reversed and his sentence vacated.
In sum, we reverse Heironimus’ convictions for failure to report an injury accident and failure to give information and vacate his sentences for those offenses. We reverse his conviction for leaving the scene of an injury accident and remand for a new trial. Because Heironimus does not challenge his convictions for driving on a suspended license and illegally displaying his vehicle tag, those convictions are affirmed.
Affirmed in part, reversed in part, vacated in part, and remanded with directions. | [
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Powell, J.:
Vaccaro Stano, an inmate in the Lansing Correctional Facility (LCF), was fined and disciplined for being intoxicated in die shower. After he unsuccessfully challenged his discipline through internal appeals, he filed a habeas corpus petition in the Leavenworth County District Court, claiming violation of his due process rights. The district court ordered an evidentiary hearing on the matter and ordered that Stano be present. Possibly in an effort to avoid the time and cost of litigation, LCF rescinded the fine and then moved to dismiss the case on the grounds that since a property interest was no longer at stake, the case was moot. The district court agreed and summarily dismissed the case for failure to state a claim upon which relief could be granted. Stano now appeals, arguing that LCF cannot moot tire case after the fact and deny him his day in court. We agree and, therefore, reverse and remand.
Factual and Procedural Background
On December 4, 2014, Officer R. Maddox issued Stano a prison disciplinary report, alleging Stano was in a condition of drunkenness, intoxication, or state of altered consciousness, a violation of K.A.R. 44-12-311. On January 7, 2015, following a disciplinary hearing in which Stano cross-examined Maddox, the hearing officer found Stano guilty of the violation and imposed a $10 fine and a 60-day restriction of privileges. Imposition of the 60-day restriction of privileges was suspended. Warden Rex Pryor, and subsequently the secretary of corrections, affirmed the decision and upheld the punishment.
On April 9, 2015, Stano filed a habeas corpus petition pursuant to K.S.A. 2015 Supp. 60-1501, alleging the disciplinary hearing was not timely held, evidence and witnesses were withheld, and there was insufficient evidence to support his conviction. Twelve days later, the district court issued an order directing LCF to produce Stano for an evidentiary hearing on his petition. LCF subsequently filed a motion to dismiss, asserting that Stano had no property or liberty interest at stake because the $10 fine had been rescinded. There is nothing in the record to show that Stano s disciplinaiy conviction had been vacated or expunged. Stanos response to the motion essentially accused LCF of seeking to deprive him of justice by purposefully mooting the case.
On August 13, 2015, the district court held a hearing and granted LCF s motion to dismiss because Stano s petition failed to state a claim for which relief could be granted. The court did so under the rationale that Stano no longer had a recognized liberty or property interest at stake once LCF rescinded the fine.
Stano timely appeals.
Did the District Court Err in Dismissing Stano’s Petition?
Stano argues that his claims were improperly dismissed because the fine originally imposed was a sufficient property interest to support his due process claims regardless of whether the fine was reversed and refunded to him.
To state a claim for relief under K.S.A. 2015 Supp. 60-1501, a petition must allege
“shocking and intolerable conduct or continuing mistreatment of a constitutional stature. [Citation omitted.] Summary dismissal is appropriate if, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists. [Citations omitted.] An appellate court reviews a summary dismissal de novo.” Johnson v. State, 289 Kan. 642, 648-49, 215 P.3d 575 (2009).
In order to establish a claim for a violation of due process in a proceeding pursuant to K.S.A. 2015 Supp. 60-1501, an inmate must establish a deprivation of a recognized liberty or property interest. See Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234 (2005). A small monetary fine constitutes a property interest sufficient to implicate procedural due process. See Anderson v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d 16, cert. denied 522 U.S. 958 (1997); see also Smith v. McKune, 31 Kan. App. 2d 984, 993, 76 P.3d 1060 (“Due process applies to the deprivation of property and inmates have a protected interest in their money. [Citation omitted.]”), rev. denied 277 Kan. 925 (2003). Thus, the $10 fine, prior to its rescission, was sufficient to establish a claim for a violation of Stano’s rights. However, LCF asserts that once the fine was reversed and refunded, the case was moot as Stano no longer had a recognizable property interest and his petition was properly dismissed. We disagree.
“[A] procedural due process violation is complete at the moment an individual is deprived of a liberty or property interest without being afforded the requisite process.” Burns v. PA Dept. of Correction, 544 F.3d 279, 284 (3d Cir. 2008). Because the district court granted LCF’s motion to dismiss for failure to state a claim, we must view as true Stano’s well-pleaded facts and any inferences reasonably drawn from them. See Cohen v. Battalia, 296 Kan. 542, 546, 293 P.3d 752 (2013). Therefore, at this stage of the proceedings, we must conclude that Stano’s property interest was improperly taken from him without due process. Accordingly, Stano’s property interest was infringed the moment LCF imposed the fine. Given that a property interest became implicated at the time the fine was imposed, we must determine whether LCF can moot the case by rescinding the fine.
It is a well-established judicial rule that
“Kansas appellate courts do not decide moot questions or render advisory opinions. [Citation omitted.] . . . [Our Supreme Court] has previously described the mootness doctrine as a court policy, which recognizes that the role of a court is to “‘determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.’” [Citations omitted.]” State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).
This notwithstanding, “ ‘as a general rule, . . . “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” ’ [Citation omitted.]” Burns, 544 F.3d at 283 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 [1979]). “This exception to mootness ‘exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.’ ” Ind v. Colorado Dept. of Corrections, 801 F.3d 1209, 1214 (10th Cir. 2015) (quoting Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 [10th Cir. 2008]). “Voluntary actions may, nevertheless, moot litigation if two conditions are satisfied: ‘(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010) (quoting Davis, 440 U.S. at 631); see Burns, 544 F.3d at 283; Robinson v. Cain, 822 So. 2d 100, 102 (La. App. 2002). “‘[Voluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.’ ” Ind, 801 F.3d at 1214 (quoting Rio Grande Silvery Minnow, 601 F.3d at 1115). The party asserting mootness, in this case LCF, bears the heavy burden of persuasion. See 801 F.3d at 1214.
In Bums, the corrections department encumbered the inmate’s funds, allegedly without due process. The Third Circuit Court of Appeals held that given that the violation occurred at the moment the funds were improperly encumbered, the corrections department’s later promise—3 years after tire fact while the case was on appeal—to refrain from seizing the prisoner’s funds did not moot the case. 544 F.3d at 284. The Third Circuit explained that the timing and content of the departments promise gave it “pause in considering whether “ ‘there is no reasonable expectation . . that the alleged violation will recur/” 544 F.3d at 284 (quoting Davis, 440 U.S. at 631). The Third Circuit stated that while it did not believe the department would resume collection efforts, the fact that the department’s assurance was provided “exceedingly late in the game” made it “more skeptical of voluntary changes that have been made long after litigation has commenced.” 544 F.3d at 284; see also Whitmore v. Hill, 456 Fed. Appx. 726, 729 (10th Cir. 2012) (relying on Bums, held property interest implicated despite fact none of the fines imposed had been actually deducted because no indication funds would not have been deducted had they not been rescinded during judicial review process).
In light of this authority, when examining the record in this case it is apparent to us that LCF rescinded the fine precisely to moot the case. Moreover, when applying the two elements required to moot a case, we agree with Stano that LCF’s act of rescinding the fine after a judicial review action had been commenced in the district court was insufficient. Even if we assume that rescinding the fine meets die second element of eliminating the effects of the alleged violation (we note that LCF did not expunge Stano’s disciplinary conviction), LCFs act of rescinding the fine only after litigation was commenced and only after the district court had ordered Sta-no s presence in court fails to satisfy the first element—that is, it fails to give us a reasonable expectation that such an occurrence would not recur. In fact, if we were to allow the rescission of a fine in such situations to moot a case after it has been filed, it would seem to have the opposite effect and give eveiy correctional facility in die state an incentive to impose a fine in a disciplinary case, safe in the knowledge that any court action brought by an inmate to challenge such fine could be mooted. This strikes us as intolerable. In our view, every correctional facility must be convinced of the appropriateness of imposing a fine on an inmate before doing so, and such facility should not be allowed to retreat simply because the inmate files a lawsuit.
Accordingly, we reverse the district courts dismissal and remand the matter for a determination of whether Stano’s due process rights were violated.
Reversed and remanded. | [
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Denied.
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The opinion of the court was delivered by
Biles, J.:
Cody Steven Funk appeals from the imposition of lifetime postrelease supervision following his guilty plea and con viction of one count of attempted indecent solicitation of a cMd. His plea arises from criminal charges filed against him following his sexual encounter with a 14-year-old girl. Funk contends lifetime postrelease supervision is disproportionate as applied to him, constituting cruel and/or unusual punishment in violation of Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Both the district court and Court of Appeals rejected his arguments. See State v. Funk, No. 107, 422, 2013 WL 1444718 (Kan. App. 2013) (unpublished opinion), rev. granted October 13, 2013. We affirm.
Factual and Procedural Background
In December 2010, Funk was charged with one count of criminal sodomy, a severity level 3 person felony, in violation of K.S.A. 21-3505. Pursuant to a plea agreement, Funk pleaded guilty to one count of attempted indecent solicitation of a child, a severity level 8 person felony, which carried a lower severity level for sentencing purposes. See K.S.A. 21-3510(a)(l) (enticing, commanding, inviting, persuading, or attempting to persuade a child 14 or more years of age but less than 16 years of age to commit or submit to an unlawful sexual act); K.S.A. 2010 Supp. 21-3301 (attempt; overt act towards perpetrating a crime). Funk’s presentence investigation report revealed one prior nonperson felony conviction for burglary and two prior nonperson misdemeanor theft convictions. He was on probation for the burglary conviction when he committed the offense in this case.
Funk filed a motion seeking probation rather than imprisonment. In support of this, he attached a portion of the victim’s testimony at a preliminary hearing in another case pending against a different defendant. Funk had waived a preliminary hearing in his case. The district court sentenced him to 18 months’ probation, with an underlying 10-month prison term and lifetime postrelease supervision. The district court also required Funk to register as a sex offender for 10 years.
Funk objected to the imposition of lifetime postrelease supervision, and the district court granted him 30 days to submit a motion challenging the constitutionality of the lifetime postrelease su pervision. No evidence was presented at a postsentencing hearing, although Funk’s counsel and the State argued the merits. Funk claimed lifetime postrelease supervision was disproportionate as applied to him and, therefore, constituted cruel and/or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Importantly, defense counsel noted that appellate courts had declined to review these types of constitutional claims because of inadequate findings and urged the district court to make adequate findings—despite the failure to offer evidence on Funk’s behalf.
In rejecting Funk’s objection, the district court made factual findings based on the preliminaiy hearing transcript attached to Funk’s motion seeking probation, as well as a probable cause affidavit in the case file that contained police accounts of witness statements. From those sources, the district court found:
“1. On the night of November 6, 2010, the Defendant, Cody Funk and at least three other young men, ages 18 to 20, engaged in sexual acts with a 14 year old girl, HD.
“2. On the night in question, two of the young men, Julio Mendoza and Kohlton Kumnick, met HD at a local convenience store. HD had been in a fight with her friends and rode around town with the two young men. Eventually they arrived at Kumnick’s dorm apartment.
“3. Funk and Justin Lord were at Kumnick’s apartment when HD, Mendoza and Kumnick arrived.
“4. Mendoza brought out a bottle of alcohol. All four men consumed the Bacardi and urged HD to drink also. HD drank steadily and quickly from the bottle. HD and Ae four men also ‘huffed’ from an aerosol can.
“5. At Aat point in Ae evening, all four men believed HD to be 16 years old based upon what she told Aem.
“6. Sometime during Ae evening, a friend stopped by Ae dorm apartment and observed HD in Ae bedroom wiA Mendoza, Funk and Lord. This individual told Kumnick she recognized HD as a freshman in high school and warned Kumnick Aat HD was too young to be at Ae dorm apartment.
“7. After drinking alcohol and huffing air duster, HD began kissing Mendoza and Lord. Funk was sitting on a bed opposite of HD wiA a computer on his lap.
“8. Eventually, HD and Mendoza engaged in sexual intercourse on Ae bed opposite of Funk. Funk remained in Ae bedroom working on his computer but could hear HD and Mendoza engaging in sexual acts.
“9. After some time, HD approached Funk and undid his pants. HD performed oral sex on Funk while Mendoza penetrated HD from behind either vaginally or anally. HD then performed oral sex on Kumnick
“10. Eventually the group dressed and went to a party where further inappropriate sexual conduct occurred.”
After setting out its findings of fact, the district court acknowledged the legal issues in the case were governed by the three Freeman factors. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). But despite this, its analysis did not follow the Freeman outline and was limited to the following:
“Based upon a review of the facts, the controlling statutes, and case law, this Court finds it is without authority to grant Funk’s motion to depart from the statutorily required imposition of life time post release supervision. The Court notes, however, drat die facts of this case clearly reflect the injustice of life time post release supervision. An 18 year old young man who allowed a 14 year old girl to voluntarily perform oral sex upon him, widiout request or force, will suffer the consequences of these actions for the remainder of his adult life.”
Parenthetically, we note also that although the district court characterized Funk as an 18-year-old man in its legal conclusion, it made no specific factual finding regarding Funk’s age. Our appellate record contains Funk’s birth year, but it does not identify the month or day, so we cannot confirm whether he was 18 years old when the crime was committed as mentioned by the district court or 18 or 19 as stated by the panel. It is also unclear from the district court’s findings whether Funk believed H.D. was 16 at the time the crime occurred. The court’s only findings were that Funk initially believed H.D. was 16 years old and at least one of the men was later told that she was younger.
Funk filed an untimely notice of appeal, but the Court of Appeals retained jurisdiction after the district court found Funk’s attorney failed to perfect the appeal. See Funk, 2013 WL 1444718, at *3; see also State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982) (noting limited exceptions to general rule that timely filing of notice of appeal is jurisdictional).
The Court of Appeals Opinion
In contrast to the district court’s more limited review, the Court of Appeals set out and applied the Freeman factors individually in addressing Funk’s Section 9 challenge. Funk, 2013 WL 1444718, at *5-11. The panel found the first factor, under which a court examines the nature of the offense and the character of the offender, weighed neither in favor of nor against finding tire sentence unconstitutional. The panel observed: “Kansas appellate courts have consistently found that the first Freeman factor weighs against defendants convicted of sex offenses against children.” Funk, 2013 WL 1444718, at *7.
In support of this, the panel referenced this Court’s decisions in State v. Ross, 295 Kan. 424, 284 P.3d 309 (2012), State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), as well as several Court of Appeals opinions in which the first Freeman factor weighed against the defendant. Funk, 2013 WL 144718, at *8 (citing State v. Black, No. 104,728, 2013 WL 517596 [Kan. App. 2013] [unpublished opinion, rev. denied 297 Kan. 1248 (2013)]; State v. Rowley, No. 104,680, 2013 WL 451886 [Kan. App. 2013] [unpublished opinion, rev. denied 297 Kan. 1254 (2013)]; State v. Collins, No. 105,523, 2012 WL 5519088 [Kan. App. 2012] [unpublished opinion, rev. denied 297 Kan. 1249 (2013)]; State v. Genzel, No. 106,136, 2012 WL 5519176 [Kan. App. 2012] [unpublished opinion, rev. denied 297 Kan. 1250]). The panel concluded that “[a]lthough these cases involve facts that arguably are more egregious than Funk’s case, they demonstrate Kansas appellate courts’ deference to the legislature’s policy decision to treat sex offenses against children as sexually violent crimes regardless of the facts of the offense.” Funk, 2013 WL 1444718, at *8.
Turning to the case-specific facts, the panel noted those weighing in Funk’s favor were: (1) his age, H.D.’s age, and that H.D. represented she was 16, which Funk might not have known to be untrue when the crime occurred; (2) there was little evidence Funk encouraged or coerced H.D. into drinking for the purpose of taking advantage of her; (3) Funk did not “knowingly [take] advantage of the age and experience difference between himself and H.D. or PI.D/s status as a minor”; (4) Funk’s criminal history did not suggest any future threat of a sexual or violent nature; and (5) Funk did not request or force the sexual contact. 2013 WL 1444718, at *8. The panel tiren determined that tire facts weighing in the State’s favor were: (1) Kansas appellate courts consider sex offenses as serious and should be treated accordingly, even if the minor consented to the activity and there was no violence involved in the commission of the offense; (2) Funk’s criminal history suggested some future risk to society; and (3) lifetime postrelease supervision advanced the legitimate penological goals of deterrence, incapacitation, and rehabilitation. 2013 WL 1444718, at *9.
Citing Mossman, the panel then determined “it is reasonable to conclude” tire second and third Freeman factors weigh in the State’s favor. Funk, 2013 WL 1444718, at *10. As to the second factor, which considers the sentence’s comparative harshness for the defendant’s crime of conviction and for more serious Kansas offenses, the panel reasoned that while Funk’s cumulative sentence due to the lifetime postrelease supervision was longer than those he would have faced for some other higher severity level nonchild sex crimes drat carry shorter postrelease supervision terms, his actual period of incarceration was much shorter and lifetime post-release imposes a lesser restriction on his freedom dran incarceration. The panel rejected Funk’s argument that the supervision term is disproportionate based on the potential life-without-parole sentence he might face if convicted of another serious offense during the supervision term. 2013 WL 1444718, at *9-10.
As to the third factor, which considers the punishment’s severity compared to the same offense in other jurisdictions, the panel relied exclusively on what it described as Mossman’s “extensive survey of punishments imposed in other jurisdictions for similar sex offenses against children” and its conclusion that “while Kansas’ sentencing scheme mandating lifetime postrelease supervision is more severe than most other jurisdictions, that fact alone does not mean that lifetime postrelease supervision is disproportionate under the third Freeman factor.” Funk, 2013 WL 1444718, at *10. The panel concluded that “[t]he Mossman rationale is equally applicable to Funk’s case.” 2013 WL 1444718, at *10.
In its ultimate weighing of all three factors, the panel held the district court did not err in ruling the lifetime postrelease supervision term was not disproportionate under the facts. Consequently, the panel concluded the sentence was not cruel or unusual under Section 9 of the Kansas Constitution Bill of Rights. 2013 WL 1444718, at *11.
In a separate analysis, the panel rejected Funk’s proportionality challenge under tire Eighth Amendment, applying the test set out by the United States Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). The panel first noted that Funk failed to suggest any basis for finding an Eighth Amendment violation if his Section 9 challenge failed and that the Freeman factors suggested the Eighth Amendment claim must also fail. Funk, 2013 WL 1444718, at *11. Then, the panel concluded under Graham’s first prong that a comparison between the gravity of Funk’s offense—in particular, that it was a sex offense against a child—-and the severity of the lifetime postrelease supervision term did not raise an inference of gross disproportionality. Accordingly, the panel held the sentence was not cruel and unusual under the Eighth Amendment. 2013 WL 1444718, at *11.
Funk timely filed a petition for review, which this court granted. Jurisdiction is proper. See K.S.A. 2014 Supp. 60-2101(b) (jurisdiction to review court of appeals decision upon petition for review); accord K.S.A. 20-3018(b).
Analysis
At the outset, we must identify what issues Funk raises in his petition for review because it focuses on the Freeman analysis governing a Section 9 analysis and makes no substantive argument regarding the panel’s Eighth Amendment holding. We consider that first and determine that only the Section 9 challenge is before us.
Eighth Amendment Issue Preservation
As discussed, die Court of Appeals specifically addressed the Eighth Amendment issue by using the United States Supreme Court’s test from its Graham decision. In doing so, the panel explained the consideration of proportionality under the Eight Amendment’s Graham test was similar to die considerations upon which die Section 9 Freeman factors are based, but it added that the Eighth Amendment analysis “differs slightly in application.” Funk, 2013 WL 1444718, at *5 (citing State v. Gomez, 290 Kan. 858, 863-64, 235 P.3d 1203 [2010]). The panel then quoted a passage from Gomez describing the Eighth Amendment application under the Graham test and made clear it was using the Freeman factors for the Section 9 analysis while using the Graham test as it had described it to decide Funlc’s case-specific proportionality challenge under the Eighth Amendment. Funk, 2013 WL 1444718, at *6.
The preservation problem is that Funk’s petition for review makes no mention of the panel’s application of the Graham test and there is no supplemental briefing following our granting of review that would indicate there remains an Eighth Amendment challenge. Indeed, Funk makes no mention of Graham in any of his appellate briefs and only refers generally to Gomez when discussing the Freeman factors. And regardless of whether there is a legal equivalence between the Section 9 analysis and the Graham test, the panel perceived a difference in how it handled these two issues. This court then is left to speculate whether Funk disagrees with how the panel decided the Eighth Amendment question. Adding to this quandary, Funk’s petition for review articulates as the question presented as whether “the Court of Appeals gave sufficient weight to the nature of the offense, the danger to society that the Defendant represented, and the nonviolent nature of the offense in proportioning the elements of the Freeman factors.” This seems to point us to Freeman rather than the Eighth Amendment.
Since the Court of Appeals disposed of Funk’s Eighth Amendment claim through Graham, and with Funk focusing his petition for review on Freeman, Funk has failed to adequately address the panel’s Eighth Amendment analysis if that was his intention. An issue not adequately briefed is deemed abandoned. State v. Hilt, 299 Kan. 176, 191, 322 P.3d 367 (2014); see also Supreme Court Rule 8.03(a)(4)(C) (2014 Kan. Ct. R. Annot. 78) (“The court will not consider issues not presented or fairly included in the petition [for review].”). Therefore, we will limit our review to the Section 9 challenge.
Standard of Review for Section 9 Analysis
Whether a sentence is cruel or unusual in violation of Section 9 of the Kansas Constitution Bill of Rights encompasses both legal and factual determinations. Mossman, 294 Kan. at 906 (citing State v. Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 [2008]). On appeal, a district court’s factual findings are reviewed for substantial competent evidence. The appellate court reviews but does not reweigh the evidence. The legal conclusions drawn from the factual findings are considered de novo. Mossman, 294 Kan. at 906 (citing State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 [2009]; State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 [2007]). In addition, we consider an attack on lifetime postrelease supervision imposed under K.S.A. 2014 Supp. 22-3717(d)(l)(G) as an indirect attack on the statute’s constitutionality as applied. “[I]f there is any reasonable way to construe the statute as constitutional, courts have the duty to do so by resolving all doubts in favor of constitutionality.” Mossman, 294 Kan. at 906-07 (citing State v. Latumer, 289 Kan. 727, 735, 218 P.3d 23 [2009]).
Discussion
In Kansas, the State may not inflict cruel or unusual punishment upon persons convicted of crimes. Kan. Const. Bill of Rights, § 9. This prohibition includes axiy punishment that “although not cruel or unusual in its method . . . [is] so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367; see Gomez, 290 Kan. 858, Syl. ¶ 9. Funk argues lifetime postrelease supervision is so disproportionate under the' facts in his cáse that it violates Section 9.
State law mandates lifetime postrelease supervision for certain sex offenses committed on or after July 1,2006, including the crime to which Funk pleaded guilty (attempted indecent solicitation of a child) and the crime to which he was originally charged (criminal sodomy). See K.S.A. 2010 Supp. 22-3717(d)(l)(G); K.S.A. 2010 Supp. 22-3717(d)(2)(D), (F), and (K). Mandatory lifetime post-release supervision becomes effective when an offender completes the prison portion of a criminal sentence and is released to the community, subject to conditions imposed by foe Kansas Parole Board (now the Kansas Prisoner Review Board) and to the Secretary of Correction's supervision. See K.S.A. 21-4703(p). This includes a general requirement that the offender cannot commit a new criminal offense and may include other conditions such as payment of costs, fines, and restitution; completing educational requirements; performing community service; reporting to a supervising office; and abiding by other special conditions allowed by administrative regulations and orders. See K.S.A. 21-4703(p); K.S.A. 2010 Supp. 22-3717(m); Mossman, 294 Kan. at 904. As the Court of Appeals panel further explained the process:
“If there is probable cause to believe that an offender on postrelease supervision has violated the conditions of release, the Secretary of Corrections may either dismiss the charges and order the offender to remain on postrelease supervision or may order a hearing before tire prisoner review board (a unit within tire Department of Corrections) on the violations charged. If a violation is established to the satisfaction of tire prisoner review board after considering all pertinent evidence, the board may reinstate, modify, or revoke postrelease supervision. If the violation is based on a new conviction, the only consideration for tire board is whether the new conviction warrants revocation of postrelease supervision. [Citations omitted].
“If postrelease supervision is revoked for any reason other than a new conviction, the offender shall serve a 6-month period of confinement. But if postrelease supervision is revoked due to a new conviction, the offender ‘shall seive the entire remaining balance of the period of postrelease supervision’ if the new conviction is for a felony or shall serve a period of confinement,.to be determined by the prisoner review board, which shall not exceed the remaining balance of the period of postrelease supervision’ if the new conviction is for a misdemeanor. [Citations omitted].” Funk, 2013 WL 1444718, at “4-5.
To determine whether a sentence’s length is unconstitutionally disproportionate to foe crime for which that sentence is imposed, Kansas courts consider the three factors commonly known as the Freeman factors:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are tire facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
See Mossman, 294 Kan. at 908.
No one factor is individually controlling and “ ‘consideration should be given to each prong of the test/ ” but one factor may “ ‘weigh so heavily that it directs the final conclusion.” Mossman, 294 Kan. at 908 (quoting Ortega-Cadelan, 287 Kan. at 161). When considering proportionality, “ ‘the factual aspects . . . are a necessary part of the overall analysis.’ ” 294 Kan. at 908 (quoting Ortega-Cadelan, 287 Kan. at 161).
First Freeman Factor
Funk places his emphasis on the first factor—the nature of the offense and character of the offender. Indeed, he frames his issue on review as whether the panel gave this factor appropriate weight.
The district court’s factual findings dealt entirely with the circumstances of the crime. It found that Funk, H.D. (the victim), and at least three other men had been drinking alcohol and “huffing” from an air duster aerosol can; all four men urged H.D. to drink; all the men were aged 18-20; Funk believed H.D. to be 16 years old when the group began drinking alcohol and huffing aerosol; someone informed one of the men H.D. was only 14; after Mendoza had intercourse with H.D. in Funk’s presence, she approached Funk, undid his pants, and performed oral sex on him while another man had intercourse with her from behind; and after the sexual activity at tire apartment, the group dressed and went to a party where further inappropriate sexual conduct occurred. The district court made no finding as to whether Funk still believed H.D. was 16 when he allowed her to perform oral sex on him.
Notably, neither party argues these factual findings are not supported by substantial competent evidence despite the fact that there was no evidence presented at the hearing challenging lifetime postrelease supervision. And this failure is particularly concerning because Funk entered a guilty plea to a lesser crime and even the most basic facts regarding his criminal conduct were never stipulated to or otherwise admitted into evidence. Nevertheless, we will treat the district court’s factual findings as supported by substantial competent evidence because neither party challenged tire basis of the court’s findings. See State v. Waller, 299 Kan. 707, Syl. ¶ 5, 328 P.3d 1111 (2014) (“An issue not briefed is deemed waived and abandoned.”).
Funk argues this first factor weighs in his favor based on his view that H.D. instigated the sexual contact, as well as the characterization that he was a passive participant in the incident, the lack of evidence that H.D. suffered physical injury or was in therapy as a consequence of Funk’s conduct, and the lack of evidence that Funk “is a pedophile or has a history of abhorrent sexual behavior.” Adding to this, we note the district court made the determination to grant Funk probation, which might be seen to add to circumstances weighing in Funk’s favor. See State v. Proctor, No. 104,697, 2013 WL 6726286, at *4 (Kan. App. 2013) (unpublished opinion) (Proctor IT) (district court’s determination that probation was warranted is “difficult to meld with the harshest component of lifetime post-release supervision”).
In response, the State contends the first factor,weighs in its favor because Kansas has a significant interest in preventing sex between adults and minors, particularly because minors cannot legally give informed, mature consent. Moreover, tire State argues that despite Funk’s claim that H.D. initiated the sexual contact, she was “strongly encouraged, if not pressured and coerced, to consume . . . alcohol... [f] or the purpose of overcoming any will power she may have had to resist the sexual assaults . . . .” And the State contends Funk’s prior burglary and theft convictions, as well as his probation violation resulting from this crime, “paint a disturbing picture of Funk’s character.”
Funk relies on a comparison between his case and State v. Proctor, 47 Kan. App. 2d 889, 280 P.3d 839 (2012) (Proctor I), in which the Court of Appeals held defendant’s lifetime postrelease supervision sentence was unconstitutional under Section 9 of the Kansas Constitution Bill of Rights. But Proctor I was summarily reversed and remanded to the Court of Appeals, and a new opinion was issued in which the Court of Appeals reached the same result. See Proctor II, 2013 WL 6726286, at *5.
The defendant in Proctor II was 19 years old and had on multiple occasions “cajoled [a 12-year-old family friend] into having manual and oral contact with [his] penis.” 2013 WL 6726286, at *2. In concluding the first Freeman factor weighed in the defendant’s favor, the Proctor II court relied upon “[t]he district court’s determination that the circumstances of Proctor’s offense warranted probation”; the prospect of a lifetime prison sentence for a future felony conviction for “writing a worthless check or shoplifting a high-end iPad;” the defendant’s young age and lack of criminal record at the time of the crimes; the lack of evidence the defendant was “a serial sex offender with a trail of victims;” and Proctor’s history of sexual abuse during adolescence, which was a trauma that went untreated. 2013 WL 6726286, at *4-6. The court distinguished cases in which the first Freeman factor weighed against persons convicted of sex crimes on the grounds that the defendants in the prior cases had not been victims of sexual abuse and “plainly were not replicating conduct that had been directed toward them.” Proctor II, 2013 WL 6726286, at *5 (discussing Mossman and Cameron). And although it believed these facts supported its conclusion that the first factor weighed in the defendant’s favor, the court noted the circumstances would be different if the defendant had a prior criminal record for serious offenses. Proctor II, 2013 WL 6726286, at *5.
The Proctor II court further concluded the penological purposes of lifetime postrelease supervision were not served under the facts before it, noting “ ‘Proctor was himself a victim of sexual abuse in his early adolescence but apparently never received counseling. He had also not been through any sort of treatment program for sex offenders. Information submitted to the district court at sentencing indicated Proctor would likely benefit significantly from such a program.’ ” 2013 WL 6726286, at “2. And building on the possibility under the postrelease supervision scheme of lifetime incarceration for a future crime, the Proctor II court believed the defendant’s history of untreated sexual abuse and amenability to treatment “suggest a defendant who, as the district court found, would very likely benefit from mental health therapy and counseling and sex offender treatment more than from incarceration.” 2013 WL 6726286, at *4. The court further reasoned that lifetime postrelease supervision “ceases to promote rehabilitation if an offender is returned to prison for life for a felony conviction.” 2013 WL 6726286, at *6.
In his briefing to this court, Funk compares the facts of his crime with tire facts in Proctor I and rhetorically asks: “What purpose . . . would it serve for [Funk] to serve the rest of his life in prison under the tepid facts of this case?” This point is based on the possibility that if Funk were convicted in the future of another felony, state law requires he “serve [imprisonment for] the entire remaining balance of the period of postrelease supervision,” i.e., life. See K.S.A. 2014 Supp. 75-5217(b)-(d). But the short answer is to recall that we have already disavowed considering what might happen if a defendant happens to commit a subsequent felony. See Mossman, 294 Kan. at 915-16 (distinguishing between the potential consequences for violating postrelease supervision conditions by committing new felony and those for the crime actually committed, i.e., imposition of lifetime postrelease supervision).
As to Funk’s arguments based on his own character, i.e., the lack of evidence he is a pedophile or has a history of sex offenses, these are not persuasive. Funk presented no evidence about his background or his risk of recidivism. See Proctor II, 2013 WL 6726286, at *5 (lifetime postrelease supervision unconstitutionally disproportionate as applied based in part on defendant’s showing he was sexually abused himself and expert testimony indicating he would benefit from therapy and was not a likely future offender); see also Mossman, 294 Kan. at 911 (discussing evidence of psychological assessment that noted defendant’s lack of criminal history, low recidivism score, acceptance of responsibility for criminal conduct, and appropriate level of remorse). In addition, the district court made no factual findings relevant to those claims. We have no way of determining his risk of recidivism, whether therapy could help, or any other personal characteristics.
In the absence of evidence as to Funk’s character, such as that presented in Proctor II, and factual findings based on that evidence^—-which the Proctor II court believed to undermine the pe-nological rationales for imposing lifetime postrelease supervision— we adhere to our previous observation that “[p]ostrelease supervision is largely designed to act as a deterrent to future crime, a goal that is particularly legitimate given sex offenders’ higher rate of recidivism.” Mossman, 294 Kan. at 911 (defendant presented evidence of low score on test designed to predict risk of recidivism, but evidence countered by expert’s concerns about defendant’s rebellious character and lack of impulse control); see also State v. Toahty-Harvey, 297 Kan. 101, 108, 298 P.3d 338 (2013) (rejecting argument that defendant’s character, i.e., mild manner and low IQ outweighed nature of offense); Cameron, 294 Kan. at 892 (noting defendant’s alcohol consumption was more significant causative factor in crimes than defendant’s proclivity to engage in sexual activities with children).
Indeed, the Proctor II court noted “[t]he circumstances would be different if [the defendant] had juvenile adjudications or criminal convictions for serious offenses, whether or not they were sexually based . . . .” 2013 WL 6726286, at *5. Here, Funk does have a record of serious criminal conduct—most strikingly, a felony burglary conviction for which he was on probation when he committed the offense against H.D.
We are left considering the district court’s findings as to the facts of tire crime and Funk’s claims about H.D.’s role in instigating the contact, the lack of harm to H.D., and Funk’s belief H.D. was 16. We hold these do not tip the first Freeman factor in Funk’s favor. Illegal sexual intercourse with a minor is a serious offense, and the victims of those crimes are legally considered incapable of consenting to such acts. Accordingly, this court has previously found unpersuasive arguments similar to Funk’s claim that the minor victim initiated the sexual contact. See Mossman, 294 Kan. at 910 (defendant alleged sex acts with 15-year-old victim were consensual). And to the extent Funk argues H.D. was not harmed, we have also rejected similar arguments based on a supposed lack of physical harm to the victim, observing:
“[I]t is generally recognized that society has a penological interest in punishing those who commit sex offenses against minors because they ‘present a special problem and danger to society’ and their actions produce ‘ “particularly devastating effects” ’ on victims, including physical and psychological harm. [Citations omitted.] . . . The State’s vital interest in protecting minors from sex activities explains the legislative decision to treat sex crimes against minors as . . . forcible or violent felon[ies] even if no physical force is involved.” Mossman, 294 Kan. at 909.
See also Toahty-Harvey, 297 Kan. at 107-08 (lifetime postrelease supervision after conviction of aggravated indecent liberties with a child based on skin-to-skin contact between defendant’s hand and “area of’ 12-year-old victim’s genitalia); Cameron, 294 Kan. at 892 (first factor weighed against defendant in challenge imposed for aggravated indecent solicitation of a child). In addition, Funk’s claimed belief that H.D. was 16 at the time is a fact question left unresolved by the district court and therefore cannot factor into our analysis. See State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009) (litigant who fails to object to inadequate findings and conclusions foreclosed from making appellate argument based on what is missing) (Seward I).
Given the district court’s factual findings, we hold the first Freeman factor does not heavily favor Funk as he claims. He and his roommates, who themselves were not old enough to possess or consume alcohol, invited a 14-year-old girl into their living quarters. He encouraged her to use illegal intoxicants. And despite being given the opportunity to do so, Funk presented no evidence to demonstrate how the deterrent goals of lifetime postrelease supervision would not be served in his case due to personal characteristics, such as his own relative youth, that might make him less likely to commit sex crimes in the future. The absence of such evidence is all the more damaging because he was already on pro bation for a felony at the time he committed the offense against H.D. and that obviously was insufficient to deter him from the riod was imposed.
Second Freeman Factor
The second Freeman factor directs the court to compare the punishment for Funk’s offense with punishments imposed in Kan-sás for more serious offenses. Mossman, 294 Kan. at 912. If the review reveals more serious crimes are punished less severely than Funk’s offense, “the challenged penalty to that extent is suspect.” Freeman, 233 Kan. at 367. The court considers whether the sentence imposed on the defendant is grossly disproportionate in relation to the sentence for the more serious offense, considering the penological purposes of the sentence under review, the seriousness of defendant’s crime, and other considerations under tire first Freeman factor. See Mossman, 294 Kan. at 917.
Funk relies on a criminal penalties survey he presented to the district court, which identified 22 offenses severity level 1-4 that carry only a 36-month postrelease supervision term. Included within these offenses are aggravated human trafficking, electronic solicitation of a child, and second-degree murder. Funk’s offense carried only a 9- to 11-month prison sentence and presumptive probation for a person with his criminal history score; however, the 22 offenses he identifies carry much longer prison terms of 38 to 653 months.
But this comparison is not persuasive because the proportionality of Funk’s sentence cannot be judged solely by comparing his lifetime postrelease supervision period to that imposed for other crimes. See 294 Kan. at 913-14. A more apt comparison is that Kansas imposes a more serious punishment for more serious sex crimes. See, e.g., K.S.A. 2014 Supp. 21-5506(b)(1) (aggravated indecent liberties—sexual intercourse with child 14 or 15 years old— is a severity level 3 felony); K.S.A. 2014 Supp. 21-6804 (severity level 3 felony carries minimum term of 55 months’ imprisonment); K.S.A. 2014 Supp. 22-3717(d)(1)(G), (d)(5)(C) (defendant convicted of aggravated indecent liberties subject to lifetime post- release supervision). And Funk does not point to any specific crime which, compared to his, is both more serious and punished less severely. Even the more serious sex crimes that carry the same supervision period are still punished more severely because they are subject to longer prison sentences. We hold the panel correcdy applied Mossman to conclude the second factor does not weigh in Funk’s favor.
Third Freeman Factor
Finally, we compare the challenged punishment with punishments in other jurisdictions for the same offense. Funk focuses not on other states’ punishment for his crime, but on his survey of other jurisdictions’ use of postrelease supervision to punish sex offenders as a class. Addressing a similar argument, the Mossman court performed an extensive analysis of sentencing schemes permitting lifetime postrelease supervision for sex crimes. See 294 Kan. at 917-19. And the court noted a number of cases in other jurisdictions concluding lifetime postrelease sentences imposed under these schemes did not constitute cruel and unusual punishment. 294 Kan. at 919-20. After this review, tire court concluded:
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of tire postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas’ requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as Mossman’s, and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” 294 Kan. at 920.
See also Cameron, 294 Kan. at 893-95 (applying Mossman analysis of third factor to lifetime postrelease supervision imposed for aggravated indecent solicitation of a child). The same analysis applies here, and Funk failed to make a more targeted argument by citing to penalties for the same crime.
Weighing All Three Factors
On balance, Funk’s crime was a serious one, and a sex offense against a minor has historically been treated as a violent felony without regard to whether physical force was used to commit it. Funk’s mitigating claims about the nature of his crime are not supported by evidence or factual findings. Moreover, Funk presented no evidence of mitigating facts about his character. Finally, the second and third Freeman factors do not indicate Funk’s lifetime postrelease supervision sentence is grossly disproportionate to sentences for more serious Kansas offenses or for similar conduct outside our jurisdiction.
The seriousness of Funk’s crime and the legitimate penological goals that the lifetime postrelease supervision period advance “outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.” Mossman, 294 Kan. at 921. Because of this, lifetime postrelease supervision is not so disproportionate a punishment to an 18- or 19-year-old man’s participation in a sex act with a 14-year'-old girl that the punishment is shocking to the conscience or offensive to fundamental notions of human dignity. See Toahty-Harvey, 297 Kan. 101, Syl. ¶ 3; Freeman, 223 Kan. at 367.
Therefore, Funk’s lifetime postrelease supervision term does not constitute cruel or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights. See Mossman, 294 Kan. at 921. Accordingly, we affirm the Court of Appeals’ decision.
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Green, J.:
Aaron Kurtz argues that the trial court illegally sentenced him to 60 days in jail for violating his probation for the first time. He argues that the trial court erred by not following K.S.A. 2013 Supp. 22-3716(c)(l)(B), which prohibits trial courts from ordering defendants to spend more than 18 days in jail for a first probation violation. But K.S.A. 2013 Supp. 22-3716(c)(l)(B) was not the law when Kurtz committed his crimes or when he violated his probation; therefore, this statute did not govern the available sanctions the trial court could use when it sentenced Kurtz. Under the law applicable—K.S.A. 2012 Supp. 22-3716(f)—the trial court could sentence Kurtz to 60 days in jail for his first probation violation. Accordingly, we affirm.
In September 2012, Kurtz was charged with attempted aggravated robbery after he allegedly approached Carla Moore with a hand in his pocket to indicate a weapon and demanded that she give him Oxycontin. Kurtz entered into a plea agreement with the State and pled guilty to one count of attempted aggravated robbery. The court granted Kurtz a dispositional departure in his sentence, and instead of ordering him to spend 36 months in prison, the trial court imposed 36 months of probation.
In June 2013, the State moved to revoke Kurtz’ probation because he had not paid toward his court costs, had not complied with his court-ordered drug treatment, had not completed court-ordered community service, had not participated in a court-ordered peer-mentoring program, had not received court-ordered mental-health services, and had let the batteries die on the GPS tracker which the court required him to wear. Kurtz stipulated to violating his probation. Accordingly, the trial court revoked his probation.
Kurtz’ probation officer told the trial court that he believed Kurtz should receive a 60-day jail sentence and have his probation reinstated for another 36 months. Kurtz argued that the trial court should not have imposed a 60-day jail sanction for his first probation violation under what was then House Bill 2170 and is now K.S.A. 2013 Supp. 22-3716(c)(l)(B). The trial court disagreed and ordered Kurtz to serve 60 days in county jail and then complete his original probation sentence of 3 years with an additional 18 months of probation.
Kurtz appeals the imposition of the 60-day jail sanction. Nevertheless, the parties agree that while his appeal was pending, Kurtz served the 60 days in jail ordered by tire trial court.
Kurtz argues that the trial court erred when it revoked his probation and sentenced him to 60 days in jail. He contends that changes made by House Bill 2170 required him to serve less jail time for his first probation violation than the 60 days he was ordered to serve. Moreover, Kurtz further contends that his 60-day jail sentence constituted an illegal punishment under the new law.
As an initial matter, the State argues that Kurtz is prohibited from complaining about the illegality of his 60-day jail sentence because he has already served his time on this sentence; therefore, the issue is moot. The State is correct that this court generally does not consider moot issues or issue advisory opinions. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). An issue is moot when any judgment by this court would not affect the outcome of the controversy between the parties. Manly v. City of Shawnee, 287 Kan. 63, Syl. ¶ 4, 194 P.3d 1 (2008). Because mootness is a doctrine of court policy, which was developed through court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).
An issue will not be dismissed as moot, however, without clear and convincing evidence that the actual controversy has ended and a judgment by this court would not affect the parties’ rights. Montgomery, 295 Kan. at 840-41. Further, the mootness doctrine is merely a court policy and not an absolute bar to deciding an issue. 295 Kan. at 840-41. It is therefore amenable to exceptions. 295 Kan. at 841; Hilton, 295 Kan. 845, Syl. ¶ 5.
One commonly applied exception to the mootness doctrine is that this court will issue decisions in circumstances where a moot issue “ 3s capable of repetition and raises concerns of public importance.’ ” Montgomery, 295 Kan. at 841, (quoting State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 [2007]). Our Supreme Court has held that providing guidance to the trial courts on lawful sentencing practices can constitute a matter of public importance. Hilton, 295 Kan. 845, Syl. ¶ 6.
For example, in Hilton, our Supreme Court considered whether Hilton had been legally sentenced, although the trial court had revoked her probation sentences and she had completed the 18 months in prison for her crimes. Our Supreme Court, however, determined that someone in Hilton’s position would probably not have been able to obtain relief before the sentence had been served and before the issue had become moot. 295 Kan. at 851. The court noted that the issue with Hilton’s sentence—whether the trial court had erred by aggregating her probation terms in two cases— was a common one. Moreover, the court further noted that trial courts needed to be instructed on how to proceed in light of a statute that required them to sentence defendants to consecutive probation terms for offenses committed while on probation. 295 Kan. at 851-52. It therefore remanded Hilton’s case to this court to apply tire'capable of repetition exception to the mootness doctrine and consider Hilton’s appeal on its merits. 295 Kan. at 852.
The State is correct that Kurtz has already served his 60-day jail sentence and that there is nothing this court can do to reheve him from a sentence he has already served. Nevertheless, Kurtz argues that the capable of repetition exception to the mootness doctrine applies in his case. We agree.
As in Hilton, no one sentenced to a 60-day jail sentence would likely obtain relief from that sentence before it was served. Also as in Hilton, the issue here is whether the trial court misapplied a statute that all sentencing courts must comply with when sanctioning a defendant for a probation violation. The issue is therefore subject to repetition. Further, like in Hilton, this issue has arisen in other cases but has evaded appellate review. See State v. Klima, No. 110, 660, 2014 WL 3843473 (Kan. App. 2014) (unpublished opinion); State v. Delvalle, No. 110, 588, 2014 WL 2871396 (Kan. App. 2014) (unpublished opinion). Following Hilton, we determine that the capable of repetition exception to the mootness doctrine applies and we will consider Kurtz’ appeal on its merits.
Kurtz contends that his sentence was illegal because it did not comply with certain changes in probation revocation law that are now codified at K.S.A. 2013 Supp. 22-3716(c)(l)(B). Whether the trial court correctly applied a sentencing statute or illegally sentenced a defendant presents a question of law over which this court exercises unlimited review. See State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011); State v. Hoge, 283 Kan. 219, 225, 150 P.3d 905 (2007).
Kurtz argues that without specific findings that he presented a danger to himself or to the public, the trial court was prohibited from sentencing him to more than 18 days in jail for a first-time probation violation. Kurtz is correct that under the 2013 amendments to the probation violation sanctions statute, courts were required to impose only short jail sentences for first-time probation violations:
“(c)(1) Except as otherwise provided, the following violation sanctions maybe imposed:
“(B) an intermediate sanction of confinement in jail for a total of not more than six days per month in any three separate months during the period of release supervision. The six days per month confinement may only be imposed as two-day or three-day consecutive periods, not to exceed 18 days of total confinement.” K.S.A. 2013 Supp. 22-3716(c)(l)-(2).
As a result, Kurtz argues that because the trial court sentenced him to 60 days in jail, it did not comply with the 2013 amendments to the probation violation sanctions statute. Nevertheless, the State argues that the trial court did not have to comply with K.S.A. 2013 Supp. 22-3716(c)(l)(B) when sanctioning Kurtz for violating his probation because the 2013 amendments were not in effect when Kurtz committed the crime for which he received probation. Moreover, K.S.A. 2013 Supp. 22-3716(c)(l)(B) was not the law when Kurtz violated his probation. Accordingly, the State contends that whether the trial court complied with K.S.A. 2013 Supp. 22-3716(c)(1)(B) is irrelevant.
Thus, we must determine whether K.S.A. 2013 Supp. 22-3716(c)(1)(B) applies to the revocation of Kurtz’ probation. As stated earlier, K.S.A. 2013 Supp. 22-3716(c)(l)(B) was notin effect when Kurtz committed attempted aggravated robbeiy in 2012 or when he violated his probation in June 2013. Nevertheless, K.S.A. 2013 Supp. 22-3716(c)(l)(B) was law when his probation was revoked in mid-July 2013. See L. 2013, ch. 76, sec. 5 (effective July 1, 2013). Generally, the criminal statutes in effect on the date a defendant committed a crime govern the defendant’s penalties. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004); State v. Parker, 48 Kan. App. 2d 68, 74, 282 P.3d 643 (2012). Thus, the only way that K.S.A. 2013 Supp. 22-3716 could apply to Kurtz’ sentence is if it was meant to operate retroactively.
A statutory change operates only prospectively, except when (1) its language clearly shows that the legislature intended retroactive application or (2) when the statutory change does not prejudicially affect the parties’ substantive rights and is merely procedural or remedial in nature. State v. Reese, 300 Kan. 650, 653, 333 P.3d 149 (2014); State v. Dreier, 29 Kan. App. 2d 958, 959, 34 P.3d 480 (2001).
First, we must consider the statutory language of K.S.A. 2013 Supp. 22-3716(c)(l)(B). The language must clearly direct courts to apply the statute retroactively, otherwise it operates only prospectively. We draw guidance from our Supreme Court’s decision in State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). In Sutherland, our Supreme Court gave an example of a statute where the legislature clearly intended that it was to be applied retroactively. The statute expressly stated that “regardless of when the inmate was sentenced or committed the crime for which sentenced, good time credits shall be allocated as follows: . . . .” (Emphasis added.) K.S.A. 1989 Supp. 22-3725(a). The legislature used specific language to state that K.S.A. 1989 Supp. 22-3725 was to be applied retroactively. Unlike K.S.A. 1989 Supp. 22-3725, the legislature chose not to use specific language indicating whether K.S.A. 2013 Supp. 22-3716(c)(l)(B) was to be applied prospectively or retroactively.
For example, when the trial court sentenced Kurtz for violating his probation, nothing in the language of K.S.A. 2013 Supp. 22-3716(c)(1)(B) indicated that the legislature had intended it to operate retroactively to probation violations committed before the law’s enactment. See Dreier, 29 Kan. App. 2d at 959. In the same line of analysis, our court has previously stated that an amendment to a probation sanction statute that reduces the harshness of penalties the court may impose for a first probation violation is a substantive amendment, not a procedural one. See 29 Kan. App. 2d 958, Syl. ¶ 2. Accordingly, when the trial court sentenced Kurtz for violating his probation, K.S.A. 2013 Supp. 22-3716(c)(1)(B) did not apply retroactively because it did not clearly state it was supposed to and because the 2013 amendments to the statute were not procedural.
Since the time Kurtz was sentenced for violating his probation, the legislature has clarified the probation violations to which it had intended K.S.A. 2013 Supp. 22-3716 to apply: only those that occurred after July 1, 2013. Specifically, as part of due Senate Substitute for House Bill 2448—which became law on July 1, 2014— it added a retroactivity provision to K.S.A. 2013 Supp. 22-3716(c):
“(12) The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced.” (Emphasis added.) L. 2014, ch. 102, sec. 8.
The plain language of Senate Substituted for' House Bill 2448— which clearly states the legislature’s intent—now tells this court that the amendment was meant to control the disposition of probation violations that occurred after July 1, 2013, regardless of when a defendant was sentenced. The legislature has therefore clarified that the date that controls the law that applies to the imposition of sanctions for violating probation is the law that existed when a defendant violated probation, not the law that existed when the defendant committed the underlying crime as this court held in Dreier, nor the law in effect when the probation hearing occurred. Therefore, Kurtz’ argument that the 2013 amendment to K.S.A. 2013 Supp. 22-3716(c)(l)(B) should apply to him fails.
Enroute to its ruling, the trial court grounded its conclusion that K.S.A. 2013 Supp. 22-3716(c)(l)(B) did not apply retroactively on this court’s holding in Dreier. This is still true. What the legislature has since made clear, however, is that the critical date for deter mining when the amendment applies is the date the defendant violated his or her probation. Even applying the 2014 clarifications of K.S.A. 2013 Supp. 22-3716(c)(l)(B) to Kurtz’ case, the trial court was not bound to follow K.S.A. 2013 Supp. 22-3716(c)(l)(B) when it sentenced him. Because Kurtz violated his probation in June 2013, and the 2013 amendment only applies to violations committed after July 1,2013, the 2013 amendments to the probation sanction statute do not apply to him under the law when he was sentenced or the law as it exists now. See L. 2014, ch. 102, sec. 8.
Even so, we must determine whether the trial court’s 60-day jail sentence complied with the law that governed probation violations when Kurtz committed his crimes in 2012. K.S.A. 2012 Supp. 22-3716(b), like the new version of the statute, limited the range of sanctions a trial court could impose for a first probation violation:
“Except as otherwise provided, if the violation is established, the court may continue or revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. Except as otherwise provided, no offender for whom a violation of conditions of release . . . has been established . . . shall be required to serve any time for the sentence imposed ... in a state facility in the custody of the secretary of corrections for such violation, unless such a person has already at least one prior assignment to a community correctional services program related to the crime for which the original sentence was imposed
But unlike K.S.A. 2013 Supp. 22-3716(c)(l)(B), K.S.A. 2012 Supp. 22-3716(b) did not prohibit sending a defendant to county jail for his or her first probation violation or limit the amount of time a defendant could be sentenced. Compare K.S.A. 2013 Supp. 22-3716(c)(l)(B) with K.S.A. 2012 Supp. 22-3716(b).
Thus, under K.S.A. 2012 Supp. 22-3716(b), the trial court did not err by sentencing Kurtz to jail for 60 days and then reinstating his probation.
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Bruns, J.:
After pleading guilty to four counts of theft and one count of making a false information, Suzanne Hayden appeals her sentence. She argues on appeal that tire district court incorrectly found that it could retroactively apply K.S.A. 2011 Supp. 21-6817(b)(4). We find, however, that the 2011 amendments to K.S.A. 2010 Supp. 21-4718(b)(4) (the previous codification of K.S.A. 2011 Supp. 21-6817[b][4]) are procedural in nature. Accordingly, we conclude that the district court properly applied the amended statute retroactively.
Next, both the State and Hayden agree that the district court departed upward on the wrong count of theft. Under these circumstances, we find that the appropriate remedy is to vacate the sentences for all the counts in 11 CR 1335 and remand for resentenc-ing so that the district court may clarify its intent. Lastly, Hayden argues that the State should have been required to prove her criminal history beyond a reasonable doubt—an issue the Kansas Supreme Court has resolved contraiy to Hayden s position. Thus, we vacate Haydens sentences in 11 CR 1335 and remand this case to the district court for further proceedings consistent with this opinion.
Facts
On October 3, 2013, in case number 11 CR 1335, Hayden pled guilty to two counts of severity level 5 theft; two counts of severity level 7 theft; and one count of making a false information, a severity level 8 nonperson felony. Approximately 2 months later in case number 13 CR 1254, Hayden pled guilty to one count of severity level 7 theft.
The charges largely revolve around Hayden-—doing business as Easy Payroll Services (EPS)—converting funds belonging to her clients or other individuals for personal uses. Between January 2008 and December 2009, Hayden initiated 40 separate transfers diverting a total of $70,864.36 that was earmarked for Fogarty Construction’s employee withholding taxes. This formed the basis for Count I—a severity level 7 theft—of case number 11 CR 1335.
Count II of case number 11 CR 1335 alleged a severity level 7 theft. From 2007 to 2010, Hayden transferred approximately $83,000 in federal and state withholding taxes for another client, Dipman Automotive. In regards to Count III—a severity level 5 theft—Hayden diverted approximately $1,000,000 set aside for federal and state taxes for Dr. Hartman, DDS.
Between August 13,2010 and April 12,2011, Hayden originated 37 separate Automated Clearing House transactions from National Payment Services (NPS), totaling $111,740.73. Hayden withdrew the funds from EPS’s account with First National Bank. This formed the basis for Count IV—another severity level 5 theft—of case number 11 CR 1335. Finally, in case number 11 CR 1335, the State charged Hayden with making a false information—Count V—when Hayden sent a letter of engagement purportedly documenting her business relationship with NPS. The owner of NPS later told investigators that he did not know who Hayden was, that he did not know of any business dealings NPS had widi Hayden, and that she was not authorized to withdraw funds from NPS.
In case number 13 CR 1254, Hayden stole $98,627.42 from her employer—Highland Park Funeral Home—by issuing unauthorized checks, using her employer’s credit card, and opening and using a credit card that was in the owner’s name. Hayden committed these acts while she was on felony bond in case number 11 CR 1335.
On June 21,2012, the State filed a motion for upward durational departure in case number 11 CR 1335. The motion alleged that “[t] he offense involved a fiduciary relationship which existed between tire defendant and the victim,” but it did not designate with which victims it believed Hayden shared a fiduciary relationship. On October 29, 2013, Hayden filed a motion objecting to the upward departure sentence, arguing that the statute in effect at die time she committed the crimes operated to preclude the State from seeking an upward departure. On November 12, 2013, the State filed a motion asking the court to impanel a jury for the departure sentence phase in case number 11 CR 1335. In its motion, the State argued that K.S.A. 2011 Supp. 21-6817 is a procedural statute, so the amended 2011 version applies retroactively.
After the parties presented arguments during a hearing on December 11, 2013, the district court granted the State’s motion to impanel a jury and denied Hayden’s objection. The record on appeal does not contain a journal entry of the district court’s order. However, on January 23, 2014, Hayden waived her right to have a jury determine whether she had a fiduciary relationship with Dr. Hartman, Fogarty Construction, and Dipman Automotive.
The case then proceeded to sentencing on May 23,2014, during which Hayden stipulated that she had a fiduciary relationship with Dr. Hartman, Fogarty Construction, and Dipman Automotive. She nonetheless stated that she wished to preserve her rights for appeal. The State clarified that it was not alleging that Hayden had a fiduciary relationship with NPS—the victim in Counts IV and V. After tire district court heard statements from some of the victims, the State gave its recommendation for Hayden s sentence. In doing so, it erroneously stated that Dr. Hartman was the victim in Count IV of 11 CR 1335.
After the district judge returned from a recess, she heard Haydens sentence recommendation but ultimately denied her motion for a downward dispositional or durational departure and found substantial and compelling reasons for the State s motion to depart. The district judge then sentenced Hayden to serve the following prison sentences:
“In 11CR1335, Count IV is the crime of tlieft [from NPS], a level 5 nonperson felony. The sentencing range is 46 to 51 months.
“I do find substantial and compelling reasons here. The sentence for Count IV is 102 months. It is presumptive for prison. There’s also a special rule that applies. Maximum good time 20 percent. Credit will be given for time served. Post release is 24 months.
“[Count] III, theft [from Dr. Hartman], a level 5 nonperson felony. The sentencing range is 31 to 34 months. A 31-month sentence is imposed.
“Count II, theft [from Dipman Automotive], a level 7, nonperson felony. The sentencing range is 11 to 13 months. An 11-month sentence is imposed.
“Count I, theft [from Fogarty Construction], a level 7 nonperson felony. The sentencing range is 11 to 13. An 11-month sentence is imposed.
“Count V, false writing, a level 8 nonperson felony. The sentencing range is 7 to 9 months. A 7-month sentence is imposed.”
The district court also ordered the sentences to run consecutive for a total controlling term of 162 months. It further established restitution in the amount of $1,303,410.52. In 13 CR 1254, the district court sentenced Hayden to serve 46 months in prison and ordered her to pay $98,627.42 in restitution. The district court ordered the sentence to run consecutive to her sentence in 11 CR 1335. Hayden thereafter timely appealed in both cases. On October 10, 2014, we entered an order consolidating the appeals.
Analysis
Hayden malees three arguments on appeal. First, she contends that K.S.A. 2011 Supp. 21-6817(b)(4) is substantive in nature, so courts may not apply it retroactively. Second, she argues that the district court should vacate the district court sentence only in regards to Count IV and remand to the district court instructing it to impose a gridbox sentence. Lastly, Hayden asserts that the State was required to prove her criminal history beyond a reasonable doubt. We consider her arguments in turn.
Is KS.A. 2011 Supp. 21-6817(b)(4) Procedural or Substantive?
The first question Hayden raises on appeal is whether the district court could retroactively apply K.S.A. 2011 Supp. 21-6817(b) (4) thereby permitting it to impanel a jury to determine aggravating factors. Although the State contends that the statute is procedural and should be applied retroactively, it argues that we should not consider the issue because it is moot. Specifically, the State argues that the issue is moot because Hayden waived her right to have a jury determine aggravating factors and stipulated that she had a fiduciary relationship with her clients, Dr. Hartman, Fogarty Construction, and Dipman Automotive.
As a general rule, we do not decide moot questions or render advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). “An exception to this general rule is recognized where the case involves a question of public interest even though it has become moot as to the parties involved.” State ex rel. Stephan v. Johnson, 248 Kan. 286, 290, 807 P.2d 664 (1991). Public importance means more than that certain members of the general public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct. State v. Hilton, 295 Kan. 845, 851, 286 P.3d 871 (2012). Because we find that the issue of whether the 2011 amendments to K.S.A. 2010 Supp. 21-4718(b) (4) are to be applied retroactively is significant not only to this case but to other cases in which the crime was committed prior to the amendments—and because this is a pure question of law—we find that the issue raised is one of public importance that we should address on the merits.
Hence, we turn to whether the district court erred by retroactively applying K.S.A. 2011 Supp. 21-6817(b)(4). Interpretation of a sentencing statute is a question of law, and our standard of review is unlimited. See State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014). The most fundamental rule of statutory construction is that the legislatures intent governs. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). We must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Phillips, 299 Kan. at 495. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, nor should it read something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
In relevant part, K.S.A. 2011 Supp. 21-6817(b)(4) provides:
“If tire court determines it is in the interest of justice, the court shall conduct a separate departure sentence proceeding to determine whether the defendant may be subject to an upward durational departure sentence. Such proceeding shall he conducted by the court before a jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the upward durational departure sentence proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the upward durational departure sentence proceeding, the court may conduct such upward durational departure sentence proceeding before a juiy which may have 12 or less jurors, but at no time less than six jurors. Any decision of an upward durational departure sentence proceeding shall be decided by a unanimous decision of the jury. Juiy selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such jury. The jury at the upward durational departure sentence proceeding may be waived in the manner provided by K.S.A. 22-3403, and amendments thereto, for waiver of a trial jury. If the jury at the upward durational departure sentence proceeding has been waived, the upward durational departure sentence proceeding shall be conducted by the court.” (Emphasis added.)
Prior to the 2011 amendments, the second sentence of the statute provided that a proceeding to determine if a defendant may be subject to an upward departure “shall be conducted by the court before the trial jury as soon as practicable.” (Emphasis added.) K.S.A. 2010 Supp. 21-4718(b)(4). Similarly, the last sentence of the statute stated that” [i]f the jury at the upward durational departure sentence proceeding has been waived or the trial jury has been waived, the upward durational departure sentence proceeding shall be conducted by the court.” (Emphasis added.) K.S.A. 2010 Supp. 21-4718(b)(4). In State v. Horn, 291 Kan. 1, 8-9, 238 P.3d 238 (2010), the Kansas Supreme Court stated that the prior statutory language “appears to contemplate the use of an existing trial jury in the separate departure sentence proceeding.” It then determined “that a defendants waiver of his or her right to a jury trial on the issue of guilt mandates that the court, not a jury, will hear the evidence and make the factual findings on the existence of the asserted sentence-enhancing factor.”
In the 2011 legislative session, the Kansas Legislature addressed the Horn decision by amending K.S.A. 2010 Supp. 21-4718(b)(4) by striking the words, “the trial” and replacing it with the indefinite article, “a,” so that the statute now simply provides that the determination regarding an upward departure must be made by “a jury as soon as practicable.” (Emphasis added.) L. 2011, ch. 91, sec. 39. Furthermore, the legislature also removed the words “the trial jury has been waived” (emphasis added) from the last sentence of subsection (b)(4), so that it now reads, “If the jury at the upward dura-tional departure sentence proceeding has been waived, the upward durational departure sentence proceeding shall be conducted by the court.” L. 2011, ch. 91, sec. 39.
The general rule is that a statutory amendment operates prospectively unless its language clearly indicates a contraiy legislative intent. See State v. Waller, 299 Kan. 707, 718, 328 P.3d 1111 (2014); State v. White, 51 Kan. App. 2d 1121, 1124, 360 P.3d 484 (2015). An exception to this rule, however, is that courts may retroactively apply an amendment to a statute that does not affect a defendant s substantive rights and is merely procedural and remedial in nature. See State v. Brownlee, 302 Kan. 491, 509, 354 P.3d 525 (2015). In the criminal context, a substantive law is one that declares what acts are crimes and prescribes the punishment while a law is procedural when it provides or regulates the steps by which one who violates a criminal statute is tried and punished. Easterwood v. State, 273 Kan. 361, 372, 44 P.3d 1209 (2002).
Hayden argues that the 2011 amendments to K.S.A. 21-4718(b)(4) should be deemed to be substantive because the sentencing statutes in effect at the time she committed her crimes would not have allowed the district court to grant an upward durational departure sentence. In making this argument, she relies heavily on a trio of cases that found certain sentencing statutes to be substantive in nature. In State v. Freeman, 249 Kan. 768, 771-72, 822 P.2d 68 (1991), the Kansas Supreme Court held that a statute giving the State an additional 30 days to file a motion to revoke probation was substantive and not procedural because if applied, it would have changed the length of the defendants probation. In State v. Sylva, 248 Kan. 118, 119-21, 804 P.2d 967 (1991), and State v. Sutherland, 248 Kan. 96, 103-08, 804 P.2d 970 (1991), the court found that a new statute requiring the district court to modify a sentence if recommended by the State Reception and Diagnostic Center, unless it made other findings, was substantive because the previous version of the statute left modification entirely within the discretion of the district court.
But Hayden mischaracterizes how K.S.A. 2010 Supp. 21-4718(b)(4) operated before it was amended in 2011. Prior to the 2011 amendments, district courts could still conduct an upward durational departure proceeding if a defendant waived his or her right to a jury determination of the issue. See K.S.A. 2010 Supp. 21-4718(b)(4); see also Horn, 291 Kan. at 11 (summarizing that “if a defendant waives a trial jury by pleading guilty to the criminal offense and the district court has accepted the plea and the trial jury waiver, K.S.A. 21-4718[b][4] directs that an upward durational departure sentence proceeding is to be conducted by the court, not a jury”). Because both the pre-2011 statute and the post-2011 statute allow a district court to conduct an upward durational departure proceeding, we conclude that the 2011 amendments do not operate to extend the length of Hayden s sentence. As such, the statute does not affect Haydens substantive rights.
Although the 2011 amendments do not directly state that courts are to retroactively apply them—which Hayden points out—we find the plain language of die amendments to be procedural in nature. Specifically, the amendments to K.S.A. 2010 Supp. 21-4718(b)(4) do not alter the acts that qualify as a crime nor do they alter the punishment for any crime. Rather, the amendments regulate the procedural steps to be taken in the judicial process to determine any aggravating factors that may justify an upward durational departure. See Brownlee, 302 Kan. at 509. Indeed, since the statute was amended in 2011, the Kansas Supreme Court has commented on K.S.A. 2011 Supp. 21-6817 by observing drat “the legislature has now established procedures whereby sentence-enhancing fact(s), i.e., elements of a greater offense, may be determined by a jury after it has already reached an initial verdict of guilty on the lesser degree of the offense.” (Emphasis added.) State v. Brown, 298 Kan. 1040, 1047, 318 P.3d 1005 (2014).
Because the 2011 amendments are procedural in nature, the district court did not err by retroactively applying them in Hayden’s case. Although Hayden also briefly argues that the application of the 2011 amendments violate the Ex Post Facto Clause, she did not raise this argument below. Constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Moreover, Hayden fails to abide by Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) by explaining why die issue is properly before us. As the Kansas Supreme Court has recently emphasized, “Rule 6.02(a)(5) means what it says and is ignored at a litigant’s own peril.” State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Thus, we decline to consider Hayden’s ex post facto argument.
To What Extent Should We Vacate and Remand for Resentencing?
Both parties agree that this case should be remanded for resen-tencing. However, they disagree over whether the case should be remanded for sentencing on all of the counts in case number 11 CR 1335—as the State suggests—or only on Count IV (theft from NPS) of case number 11 CR 1335—as Hayden suggests. In her brief, Hayden argues—without citation—that we “must vacate Ms. Hayden’s sentence for count four of 11CR1335 and remand with instructions that the district court impose a gridbox sentence.” The State, on the other hand, argues that this court should remand 11 CR 1335 in its entirety so that the district court can depart on the counts for which there was a breach of a fiduciary duty.
It is undisputed that a sentencing departure must be supported by substantial and compelling reasons justifying a deviation from the presumptive guidelines sentence. K.S.A. 2011 Supp. 21-6820(d). “Substantial” means something real, not imagined; something with substance, not ephemeral. “Compelling” means that the court is forced, by the facts of the case, to leave the status quo or go what is beyond ordinary. State v. Bird, 298 Kan. 393, 397, 312 P.3d 1265 (2013).
K.S.A. 2011 Supp. 21-6820(f) provides that “[i]f the appellate court concludes that the trial courts factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.” (Emphasis added.) Accordingly, the plain language of the statute provides that in such instances, the entire case should be remanded for resentencing, not simply a particular count. Moreover, “Kansas precedent shows that remand for clarification of departure reasons has been allowed with respect to upward departures.” State v. Blackmon, 285 Kan. 719, 730-32, 176 P.3d 160 (2008) (citing State v. Garcia, 274 Kan. 708, 717, 56 P.3d 797 [2002]; State v. French, 26 Kan. App. 2d 24, 27, 977 P.2d 281 [1999]; State v. Peterson, 25 Kan. App. 2d 354, Syl. ¶ 2, 964 P.2d 695, rev. denied 266 Kan. 1114 [1998]).
Here, it appears from the record that the district court likely intended to grant the upward durational departure sentence on Count III (theft of Dr. Hartman) rather than on Count IV (theft from NPS). Clearly, Hayden stipulated to a fiduciary relationship in regards to Dr. Hartman—as well as to Fogarty Construction and Dipman Automotive—but did not stipulate to a fiduciary relationship with NPS. In addition, tire record reveals that other than Count IV, Count III was the only other severity level 5 theft with which Hayden was charged. At the sentencing hearing, the district court largely referenced the victims as a whole—noting how devastating Hayden’s actions were on all of them—rather than speaking about a particular victim. As such, we conclude that it is appropriate to vacate all of the sentences in case number 11 CR 1335 and remand that case to the district court for resentencing as it deems appropriate.
Must the State Prove Haydens Criminal History Score Beyond a Reasonable Doubt?
Lastly, Hayden contends that the district court violated her Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by using her prior convictions to increase her sentence without requiring the State to prove them beyond a reasonable doubt. She candidly acknowledges that the Kansas Supreme Court previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Moreover, she acknowledges drat we are bound to follow precedent established by our Supreme Court unless there is an indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Based on our review of Ivory’s progeny, we do not find any suggestion of such departure. See State v. Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015); State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014); State v. Smith-Parker, 301 Kan. 132, 135, 340 P.3d 485 (2014); State v. McCune, 299 Kan. 1216, 1234-35, 330 P.3d 1107, cert. denied 135 S. Ct. 457 (2014). Accordingly, we find no merit in this argument.
Affirmed in part, vacated in part, and remanded with directions. | [
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Denied.
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In a letter signed on December 15, 2014, addressed to the Clerk of the Appellate Courts, respondent Bart A. Chavez, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403).
At the time the respondent surrendered his license, complaints had been docketed by the Disciplinary Administrator s office in accordance with Supreme Court Rule 217. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 8.1(b) (2014 Kan. Ct. R. Annot. 670) (bar admission and disciplinary matters), 8.3(a) (2014 Kan. Ct. R. Annot. 678) (reporting professional misconduct), 8.4(a), (d), and (g) (2014 Kan. Ct. R. Annot. 680) (misconduct), Supreme Court Rule 207(a) (2014 Kan. Ct. R. Annot. 342) (cooperating with Disciplinary Administrator), and Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (registration of attorneys).
This court, having examined tire files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Bart A. Chavez be and he is hereby disbarred from the 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 Bart A. Chavez 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 die 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 16th day of December, 2014. | [
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Leben, J.:
Paul Dale Zishka appeals the district court’s decision at his annual review hearing to maintain his status in treatment in the Sexual Predator Treatment Program. On appeal, Zishka argues that the district court violated his rights when it failed to hold a hearing and failed to appoint an attorney to represent him. We agree.
Persons involuntarily committed as sexually violent predators are entitled to an annual review hearing at which they are represented by counsel. Here, the district court gave no hearing notice and simply signed a proposed order'—submitted by the State—finding that Zishka should remain in the treatment program. In addition, although Zishka twice asked in writing to have counsel appointed to represent him, the district court did not do so. We therefore reverse the district court and remand to hold Zishka’s review hearing after appointing counsel to represent him.
With that summary, let’s review Zishka’s appeal in greater detail. In 2008, Zishka was involuntarily committed as a sexually violent predator under the Kansas Sexually Violent Predator Act (the Act), K.S.A. 59-29a01 et seq. Since that time, he has been in state custody at the Larned State Hospital. He must remain in state custody until he malees sufficient progress in treatment that he qualifies for transitional release and, potentially, final discharge from the Sexual Predator Treatment Program. See In re Burch, 296 Kan. 215, 219-20, 291 P.3d 78 (2012).
Persons committed under the Act must receive an annual review of their status at a court hearing. Before that hearing, the Secretary of the Kansas Department for Aging and Disability Services, who formally has custody of those committed, must provide a written notice of the person’s right to petition the court for release over the Secretary’s objection. The Secretary also must forward to the district court that committed the person an annual report regarding the person’s mental condition, as well as the notice given to the committed person. K.S.A. 2014 Supp. 59-29a08(a).
The events leading to this appeal relate to Zishka’s 2014 annual review. In April 2014, Keri Applequist, a master’s-level psychologist and licensed clinical therapist, issued the required report of Zishka’s mental condition. She concluded that Zishka’s mental abnormality or personality disorder had “not so changed that it would be safe for Mr. Zishka to be placed in Transitional Release at this time.”
The Secretary notified Zishka that the Secretary had reviewed the annual report, that he had concluded it would not be safe to release Zishka at this time, and that Zishka had the right to petition the court for release over the Secretary’s objection. The notice also provided that Zishka could “waive further court proceedings at this time and . . . continue in treatment.” The form provided two spots where Zishka could sign—one was a mere acknowledgement (of his rights and receipt of tire Secretary’s notice) while the other waived his right to his annual review hearing. Zishka signed the acknowledgement.
Knowing that his annual review was coming up, Zishka had already sent the district court a notice requesting “to have counsel re-appointed to represent him during all stages of his annual review” and to have an expert appointed to examine him. That notice was filed with the district court on April 3, 2014. After receiving the Secretary’s notice and tire annual report prepared by Apple-quist, Zishka sent a further motion to the court seeking appointed counsel for his annual review hearing. That notice was filed with the district court on May 27, 2014.
Several things should have happened at this point.
First, the district court should have appointed counsel to represent Zishka in connection with the annual hearing. K.S.A. 2014 Supp. 59-29a08(a) clearly provides that “[t]he committed person shall have a right to have an attorney represent the person at the hearing . . . .” That statute adds that “the [committed] person is not entitled to be present at the hearing,” which makes the appointment of counsel even more critical. The Kansas Supreme Court has noted that the committed person has the right to attorney representation at this hearing even though the committed person is not entitled to be brought from Larned to the district court for the hearing. Burch, 296 Kan. 215, Syl. ¶ 5. The specific right to have an attorney at the annual review hearing is consistent with another provision of the Act, which provides the right to be represented by an attorney “[a]t all stages of the proceedings” under the Act. K.S.A. 2014 Supp. 59-29a06(b); see also In re Care & Treatment of Ontiberos, 295 Kan. 10, 24-25, 287 P.3d 855 (2012) (finding due-process right to effective counsel at commitment proceeding under the Act).
Second, the district court should have considered appointing a suitable person to conduct an independent examination of Zishka. K.S.A. 2014 Supp. 59-29a08(a) provides that “the court may appoint a qualified professional person to examine” a committed person if tire person is indigent and makes that request. The district court has found that Zishka is indigent, but its order gives no indication that it even considered appointing a suitable professional to evaluate Zishka. This is quite important because in the absence of a recommendation from the Secretary to move Zishka into transitional release, he can only get a hearing toward making that move if the court first determines that “probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release . . . K.S.A. 2014 Supp. 59-29a08(c)(1); see Burch, 296 Kan. 215, Syl. ¶ 7. To show probable cause, Zishka would need an expert’s opinion.
Third, the district court should have provided notice of its annual review hearing. Where a person’s liberty is restrained (clearly the case for an involuntarily committed person like Zishka), due process requires notice and an opportunity to be heard that is appropriate for the case. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); State v. Wade, 284 Kan. 527, 541, 161 P.3d 704 (2007); In re Care it Treatment of Hay, 263 Kan. 822, Syl. ¶ 4, 953 P.2d 666 (1998). Moreover, K.S.A. 2014 Supp. 60-206(c) requires that the court provide at least 7 days’ notice for court hearings unless it sets a different time. Here, the district court gave no advance notice before it filed a signed journal entiy, prepared by the State, keeping Zishka in treatment with no change to transitional release. The district court cannot simply review the papers and sign the State’s proposed order. It must hold the annual review hearing called for by statute.
That statute, K.S.A. 2014 Supp. 59-29a08, makes several references to a hearing. After saying that the district court “shall . . . conduct an annual review of the status of the committed person’s mental condition,” K.S.A. 2014 Supp. 59-29a08(a) twice references a hearing-. “The committed person shall' have a right to have an attorney represent the person at the hearing but the person is not entitled to be present at the hearing.” (Emphasis added.) The statute continues by saying that “[i]f the court at the hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release,” then the court must set another hearing to consider that issue. (Emphasis added.) K.S.A. 2014 Supp. 59-29a08(c)(1); see Burch, 296 Kan. 215, Syl. ¶ 7; In re Miles, 42 Kan. App. 2d 471, 474, 213 P.3d 1077 (2009) (“[T]he committed person has a right to have his or her attorney represent the person at tire hearings in connection with annual review.”).
The Kansas Sexually Violent Predator Act serves important objectives by protecting the public from, and providing treatment to, sexually violent offenders. But all parties involved in the process, including the district court, must make sure that the procedural rights of those who are involuntarily committed are fully respected. We have emphasized in other cases that the constitutionality of the Act depends on these procedural rights. E.g., In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 315, 263 P.3d 199 (2011) (Greene, C.J., concurring); Merryfield v. State, 44 Kan. App. 2d 817, 818, 825, 241 P.3d 573 (2010); Miles, 42 Kan. App. 2d at 476. Indeed, Justice Anthony Kennedy, who joined in the United States Supreme Court’s 5-to-4 decision upholding the constitutionality of the Act, emphasized the law’s “protections, including yearly review and review at any time at the instance of the person confined.” Kansas v. Hendricks, 521 U.S. 346, 372, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (Kennedy, J., concurring).
Although Zishka raised a number of issues on appeal, we find it sufficient to rule only on his objection that the district court “erred when it denied [his] right to a hearing and the right to be appointed counsel.” Review of any other issues should wait until counsel has been appointed to represent Zishka and the district court has held its annual review hearing.
The district court’s judgment is reversed, and this case is remanded with directions to appoint counsel for Zishka and to hold an annual review hearing. | [
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Gardner, J.:
Stephen D. Goldman, while a fifth-year doctoral student in the School of Pharmacy at the University of Kansas (KU), was accused of scholarly misconduct. KU investigated the matter, held a hearing, found scholarly misconduct, and then sanctioned Goldman by dismissal from the School of Pharmacy. Thereafter, Goldman brought an action in district court seeking judicial review of agency action and then amended his petition by adding a tort claim, a breach of contract claim, and a due process claim. Goldman appeals from the district courts decision resolving the judicial review claims, but we find that decision is not final because Goldman’s tort, contract, and due process claims in the same action remain pending in district court. Accordingly, we dismiss the appeal for lack of jurisdiction.
Procedural background
Because of the procedural posture of this case and our conclusion on this appeal, we find it unnecessary to set forth in detail the many facts relevant to the merits of this appeal. Suffice it to say that Goldman, while a fifth-year doctoral student in the School of Pharmacy at KU, was accused of scholarly misconduct. KU investigated, held a hearing, found Goldman had committed scholarly misconduct, and ultimately dismissed him from the School of Pharmacy.
Goldman then filed suit in the district court via a petition alleging only one count—“judicial review of agency action.” But the case was stayed pending exhaustion of Goldmans administrative remedies at KU. When those administrative remedies were exhausted and the stay was lifted, Goldman chose to amend his petition by expanding his petition for judicial review from one to four counts and by adding three new counts to his petition. Thus his first amended petition states the following counts: (1) the agency’s determination was unsupported by substantial evidence; (2) the agency’s action was unreasonable, arbitrary, or capricious; (3) the agency failed to follow the prescribed procedure; (4) the investigative committee was improperly constituted; (5) tortious interference with prospective business relationship; (6) breach of contract; and (7) procedural due process violation under 42 U.S.C. § 1983 (2012).
The amended petition notes the first four of these seek “judicial review of agency action,” while the latter three do not. Goldman s tortious interference count alleges that he had tire expectancy of a business relationship in the form of post-academic employment with the probability of future economic benefit. His breach of contract count alleges KU breached its implied duty of good faith and fair dealing by terminating his research appointment. And his procedural due process count is against an individual defendant, his supervising professor, who allegedly failed to timely and fully inform Goldman of the allegations against him in advance of the investigating committee hearing.
The district court issued a lengthy memorandum decision resolving only Goldman s first four counts, stating the “matter comes on before the court on Petitioners’ petition for judicial review.” The decision makes no mention of Goldman’s remaining three counts. After its analysis, the court concludes:
“The court affirms die actions of die University and denies petitioners appeal. This memorandum decision constitutes a journal entry and judgment is entered in accordance widi the findings hereinabove made.”
This is the decision from which Goldman appeals.
On appeal, Goldman essentially argues that the district court erred because the investigative committee’s finding of scholarly misconduct was unreasonable, arbitrary, or capricious; the sanction of dismissal from the School of Pharmacy was not supported by substantial evidence; KU was required to follow the Code of Federal Regulations but failed to do so; and the investigative committee was impropeiiy constituted because one of its members had a conflict of interest.
Our show cause order
After receiving the parties’ briefs on the merits of this case, we issued a show cause order informing the parties of our belief that we lack jurisdiction over this appeal because Goldman’s tort, contract, and due process claims remain pending in the district court. That order stated in part:
“Under Kansas law, a judgment is final and appealable only if it finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for future or further action by the court. Flores Rentals, L.L.C. v. Flores, 283 Kan. 476, 481-82, 153 P.3d 523 (2007). In this case, the district court’s Memorandum Decision did not address Appellant’s claims of tortious interference (Count V), breach of contract (Count VI), or due process under 42 U.S.C. 1983 (Count VII).
“Moreover, the record on appeal does not reflect that Appellant ever sought or obtained a certification from the district court that this judgment was final under K.S.A. 60-254(b).”
Consent to jurisdiction is immaterial
Both parties responded that we have jurisdiction. Goldman argues that the KJRA provides its own independent grant of appellate jurisdiction and that judicial economy would be better served by retaining jurisdiction. KU argues only that the district court’s decision constitutes a final decision on the “KJRA action,” implying that we should consider Goldman’s KJRA claims as separate or severed from his other claims.
The parties stated during oral argument that they agreed in district court to go forward only on Goldman’s KJRA claims while leaving his other claims for future discovery, producing an informal stay of the unappealed claims. The unusual procedural posture of this appeal is thus a result of counsel’s intentional trial strategy.
But the parties’ agreement that we have subject matter jurisdiction does not invest us with jurisdiction.
“[Pjarties cannot confer subject matter jurisdiction by consent, waiver, or estop-pel, and a failure to object to the court’s jurisdiction does not invest the court with the requisite subject matter jurisdiction. Padron v. Lopez, 289 Kan. 1089, 1106, 220 P.3d 345 (2009).” Bartlett Grain Co., v. Kansas Corporation. 292 Kan. 723, 726, 256 P.3d 867 (2011).
Accordingly, we examine whether some other basis for our jurisdiction exists.
A statutory basis for jurisdiction is necessary
Our court has a duty to determine its own jurisdiction over the appeal. In re Estate of Butler, 301 Kan. 385, 390, 343 P.3d 85 (2015). If we lack jurisdiction, we have the duty to dismiss this appeal. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). The right to appeal is purely statutory and is not contained in the United States or Kansas Constitutions. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609-10, 244 P.3d 642 (2010).
“Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. See Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P.2d 476 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 105-06, 562 P.2d 108 (1977).” Flores Rentals, v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007).
Appeals from decisions on petitions for judicial review are not sui generis
We begin our analysis by examining the parties’ claims that “KJRA actions” are independently appealable, even when the petition contains other claims. Goldman’s KJRA claim arises under Chapter 77 and not under Chapter 60. Chapter 77 provides its own statute governing review by a higher court, stating: “Decisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.” K.S.A. 77-623. This is the sole statute cited by the parties as a basis for our jurisdiction. Goldman and KU essentially contend that a final decision on a petition for judicial review of an agency action is appealable as if it were a separate civil action, even when other claims joined in the same case remain pending in tire district court. But neither party shows the court how such an interpretation is either reasonable or supported by caselaw.
We cannot read this statute to mean that appeals from decisions on petitions for judicial review are sui generis-—unlike those in other civil cases-so that they can be appealed piecemeal. Instead, the plain language of K.S.A. 77-623 requires us to determine appellate jurisdiction over a decision on a KJRA petition in the same manner that we determine jurisdiction in appeals from civil cases under Chapter 60.
Further, the Kansas Supreme Court has interpreted the statute to mean that we look to Chapter 60 to determine our jurisdiction in KJRA cases. See U.S.D. No. 279, v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 524, 802 P.2d 516 (1990) (“From tire outset we recognize that appellate review of an agency action is ... as in other civil cases. K.S.A. 77-623.”); U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 139-40, 785 P.2d 993 (1990) (“Under K.S.A. 77-623, an appellate court is to review a district courts review of an agency action in the same manner it would review any other decision of a district court in a civil matter.”).
This court has done the same. See Yeasin v. Univ. of Kansas, No. 113,098, 2015 WL 5617617, at *6 (Kan. App. 2015) (unpublished opinion) (“Parties in an agency action before tire district court under the KJRA may appeal the district court’s decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623.”); Miller v. Thompson, 103,167, 2010 WL 3853326, at *2 (Kan. App. 2010) (unpublished opinion) (same), rev. denied 292 Kan. 965 (2011).
Had Goldman not joined his KJRA claims with his other claims in one action, and were we solely examining the appealability of the district court’s decision on Goldman’s KJRA claims, we would analyze the finality of that claim in the same way we would if it were a civil case and would have no trouble finding that decision to be final and properly appealable. This is the analysis we previously used in finding the district court’s decision ordering a school board to hold a teacher due process hearing pursuant to K.S.A. 72-5446 was not a final, appealable decision.
“K.S.A. 77-623 provides ‘petitions for judiciafreview of agency action are reviewable by the appellate court as in other civil cases.’ Pursuant to K.S.A. 60-2102(a) (4), a party has the right to appeal a ‘final decision’ in any action. The jurisdictional question before this court, then, is whether the district court’s decision ordering a due process hearing is a final, appealable decision. If not, the appeal is interlocutory and must be dismissed.” Nickels v. Board of Education of U.S.D. No. 453, 38 Kan. App. 2d 929, 930-31, 173 P.3d 1176 (2008).
But that is nót tire procedural posture of this case. Goldman chose to join his tort, contract, and due process claims with his KJRA claims in a single action but appeals a decision which resolves only some of those claims. In accordance with the plain language of K.S.A. 77-623 and the general direction given us by caselaw, we look to the jurisdictional rules governing appeals from civil actions to determine whether we have the authority to hear the appeal in this case. We will thus apply tire general rules of Chapter 60 about finality of decisions and consider Goldman’s KJRA claims to be ap-pealable to the same extent they would be appealable were they Chapter 60 claims included in his petition.
Doing so makes sense, as Chapter 77 does not attempt to define or describe the appellate rights of a party as one would expect if the legislature had intended to create appellate jurisdiction independent from the ways in which Chapter 60 or other statutes already do so.
No final decision in the action
In a Chapter 60 action, our appellate jurisdiction generally extends only to final decisions which dispose of the entire action. “[T] he appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:... [a] final decision in any action.” K.S.A. 60-2102(a)(4). In that context, a final decision is “ ‘one which finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court.’” Plains Petroleum Co. v. First Nat’l Bank of Lamar, 274 Kan. 74, 82, 49 P.3d 432 (2002) (quoting State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, Syl. ¶ 2, 941 P.2d 371 [1997]).
All parties agree that the agency, KU, took final action from which a petition for review was properly filed with the district court, and that the district court made a final decision as to the KJRA claims only.
Neither party contends that the district court’s decision disposed of the merits of Goldman’s entire action—it is undisputed that his tort, contract, and due process claims remain for resolution. In fact, Goldman acknowledges in the docketing statement that the appeal was not from a final order, as the district court’s decision did not dispose of the'action as to all claims by all parties. Because those unresolved claims are undeniably part of the “action” he filed in district court, see K.S.A. 60-202 (mandating only one form of action); K.S.A. 60-203 (describing an action as commencing with the filing of a petition with the clerk of the court), the decision on Goldman s KJRA claims is not a final decision in the action from which an appeal may be taken as a matter of right.
Piecemeal appeals are disfavored
“[A]s part of the legislature’s desire to reduce the chances of piecemeal appeals, the legislature has limited appeals to certain circumstances only. See generally K.S.A. 2007 Supp. 60-2102.” Harsch v. Miller, 288 Kan. 280, 288-89, 200 P.3d 467 (2009).
“Kansas appellate courts generally have jurisdiction to hear an appeal only if it is taken in the manner prescribed by statute. See Bartlett Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 726, 256 P.3d 867 (2011). Moreover, Kansas appellate courts have a clear policy against piecemeal appeals. See State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014). Piecemeal appeals are discouraged and are considered exceptional. See In re Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010).” Steinmetz v. United Parcel Serv., No. 113,262, 2015 WL 5458767, at *2 (Kan. App. 2015) (unpublished opinion).
“The policy of the new [Code of Civil Procedure] leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.” Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964); see also Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008) (finding in Kansas, piecemeal appeals are frowned upon).
The effect of the district courts decision on Goldmans KJRA claims is no different than had the court granted summaiy judgment on Goldman s KJRA claims without addressing his tort, contract, and due process claims. In such cases, no final judgment exists upon which we can base our jurisdiction. 319 P.3d 506 (2014) (‘Kansas lias a clear policy against piecemeal appeals.’); Gillespie, 263 Kan. at 656.” Ball v. Credit Burea Servs., Inc., No. 111,144, 2015 WL 4366440, at “13 (Kan. App. 2015) (unpublished opinion).
“Typically when a district court grants summary judgment on some but not all the claims in a case, those rulings are interlocutory and subject to change until the remaining claims have been otherwise resolved. In short, there is no final judgment and nothing to appeal. That’s precisely what K.S.A. 2014 Supp. 60-254(b) provides. Were the general rule otherwise, a party could appeal a grant of summary judgment on a claim while other claims remained for trial. The result would be piecemeal review of a case in the appellate courts, something to be avoided as inefficient. As the Kansas Supreme Court has said: ‘[Pjiecemeal appeals are discouraged and are considered exceptional.’ In re Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010); see also State v. Hall, 298 Kan. 978, 986,
See In re Adoption of Baby Girl P., 291 Kan. 424, 429, 242 P.3d 1168 (2010) ("When a district court bifurcates an action and delays ruling on some part of the matter before it, the case usually becomes ripe for appeal only when the district court enters final judgment on all pending issues. Cf. McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 [1976]"). The same is true here.
No 60-254(b) certification
Goldman earlier suggested the district court s decision is appeal-able because the district court directed the entry of judgment under K.S.A. 2014 Supp. 60-254(b). That statute provides:
“When an action presents more than one claim for relief,... the court may direct entry of a final judgment as to one or more, but fewer than all, claims ... only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims . . . does not end the action as to any of the claims
But the record shows the district court made no determination that there is no just reason for delay, and the parties admit they did not request one. Goldmans amended petition presents seven claims for relief, yet the court s order directs entry of judgment as to only four of them—his KJRA claims—and does not state that there is no just reason for delay. It simply states: “This memorandum decision constitutes a journal entry and judgment is entered in accordance with the findings hereinabove made.” A certification pursuant to this statute must contain an express determination that there is no just reason for delay, as well as an express determination that the entry of judgment is a final judgment. City of Salina v. Star B, Inc., 241 Kan. 692, 695, 739 P.2d 933 (1987). Because the decision appealed from does not include both of these statements, the decision “does not end the action as to any of the claims.” K.S.A. 2014 Supp. 60-254(b).
It is too late now to make the necessary certification, as the parties and the district court are not permitted to amend a judgment for this purpose. Instead, the essential language must be included in the original journal entiy. See Prime Lending II v. Trolley’s Real Estate Holdings, 48 Kan. App. 2d 847, 853-55, 304 P.3d 683 (2013). Accordingly, the parties have not shown that we arguably have jurisdiction pursuant to this statute.
No Discretion—Judicial Economy
Nor can we base jurisdiction on a desire for judicial economy. It is the function of the district court, and not an appellate court, to “act as a dispatcher” and to determine the appropriate time when each final decision in a multiple claims action is ready for appeal. The district court may exercise its discretion in tire interest of sound judicial administration, but this court has no discretion to act in the interest of “judicial economy” in the absence of a statutory basis for our jurisdiction. St. Paul Surplus Lines Ins. Co. v. Int’l Playtex, Inc., 245 Kan. 258, 259, 777 P.2d 1259 (1989).
Conclusion
No other basis for our appellate jurisdiction in this case has been argued or is apparent to this court. The parties do not contend this is an interlocutory appeal, and although the relevant statute permits appeals of nonfinal orders, the requisite circumstances are not present here. See K.S.A. 2013 Supp. 60-2102(c). Nor do the parties contend that the collateral order doctrine somehow applies, and we agree that it clearly does not. See generally Svaty, 291 Kan. at 611-12.
Regardless of the positions of the parties, whose strategy has produced unintended yet foreseeable consequences, and despite the desire we do have to promote judicial economy, we can do nothing but dismiss this appeal for lack of jurisdiction.
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The opinion of the court was delivered by
Beier, J.:
Defendant Jerold Michael Dunn appeals his convictions on one count of forgery and one count of stalking. For the first time on appeal, he urges us to abandon the analytical structure erected by State v. Hall, 246 Kan. 728, 760-61, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), and argues that the charging documents failure to allege all of the elements of the crime of forgery deprived the court of subject matter jurisdiction. Dunn also challenges the sufficiency of the evidence on his stalking conviction.
On the way to resolution of these issues, we revisit and realign the Kansas approach to charging document sufficiency. We conclude that charging documents do not bestow or confer subject matter jurisdiction on state courts, and thus they need not allege every element of a crime in order to invoke a district courts subject matter jurisdiction or sustain an appellate court’s jurisdiction. However, omission of certain information from a charging docu ment may give a criminal defendant a successful claim for relief that will take various forms at various stages of a prosecution before the district court and on appeal.
Ultimately, under the revised pattern of analysis we describe today, we affirm both of Dunns convictions.
Introduction
Each criminal defendant is entitled to a fair trial. But there are few, if any, perfect trials. This is inevitable because trials are human endeavors.
The essential task of an appellate court when reviewing criminal cases is discerning which proceedings are so imperfect that they are unfair. Certainly, there are singular, critical aspects of a prosecution that cannot be done wrong or done without. Error affecting other aspects can be disregarded as long as the appellate court possesses a specified level of confidence that the error made no difference.
This court has been vexed for many years by difficulties in distinguishing one from the other when it comes to error in charging documents in criminal cases. Are such errors potentially fatal to subject matter jurisdiction? If so, how do we tell when they are so imperfect that jurisdiction is implicated? Even if charging documents are not jurisdictional instruments, how do we tell when they are so imperfect that they have failed to fulfill their function of informing the defendant about the crime alleged so that he or she can challenge the State s case?
We have state constitutional provisions that shed some light on this subject. We have statutes designed to tell us what must be in a complaint, information, or indictment- — the three charging documents conventionally employed in Kansas. And we have dozens and dozens of cases that have wrestled with the nature and content of charging documents, cases nearly as old as the state and as fresh as todays blog post. These cases are listable and describable, but not all are amenable to seamless or even sensible synthesis, the lawyers stock in trade.
One case, in particular, has been the bane of the criminal defense lawyers’ existence for more than 25 years: State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990). Today defendant Dunn urges us to reject Hall, at least to the degree that it made it more difficult for defendants to mount a successful jurisdictional challenge based on charging document error raised for the first time on appeal. Dunn argues that this part of Hall has never made sense. Subject matter jurisdiction exists or it does not, and all parties and the court are independently charged with ensuring that it does exist before disposing of any other issue in a case. Dunn insists that the timing of raising the question matters not one whit.
After comprehensive study, we have determined that it has been too easy to point out this flaw in Hall and apparently almost impossible for this court and those who come before it to appreciate its other, substantial virtues. Today we review what led this court to Hall and to a recent partial retreat from it, examining historic Kansas constitutional, statutory, and caselaw developments. We attempt to preserve what was good in Hall and say goodbye to its logical and legal infirmities.
Factual Background
During a break in their on-again-off-again relationship, defendant Dunn and Tracy Shaw, who had obtained a protection order against Dunn, encountered one another at a bank in Parsons. Shaw visited the bank daily as part of her job as a courier. According to bank employees, Dunn had been wandering around outside the bank before Shaw’s arrival, and he eventually entered the bank, inquired about opening a checking account, and then appeared to leave. Shaw arrived some time later. While she was inside, Dunn reappeared and approached the banks glass front doors. When Dunn waved at Shaw, a bank employee heard Shaw say, “That’s harassment,” and Shaw appeared to be “nervous and afraid, scared, upset.” The employee offered Shaw the use of a telephone to call police, but Shaw declined.
Once it appeared that Dunn had again departed, Shaw left the bank to go to her car. As she was walking toward it, Dunn reappeared and positioned himself between Shaw and her car door. From inside the bank, the employee saw Dunn get “right into [Shaw’s] face, and . . . point[] his finger.” The employee said that Dunn “looked real mad” at Shaw.
Shaw would eventually testify that she was afraid and felt unsafe during this encounter with Dunn at the bank. Shaw also testified on direct examination about statements Dunn made to her at the time of the confrontation near her car; but she said she could not remember those statements during cross-examination. As a result of Shaw’s memory lapse, the district judge struck her earlier direct examination testimony about Dunns statements.
A month after the bank encounter, Dunn and Shaw reunited, and Shaw sought to have the protection order lifted.
A few weeks later, Dunn went to a smoke shop to buy cigarettes. Dunn presented the cashier with a prewritten check drawn on Shaw’s bank account. The cashier told Dunn that the signature on the check was in the wrong place; it appeared on the checks memo line rather than on its signature line. Dunn then signed “Tracy Alford,” the other name by which Shaw is known, on the checks signature line. According to Shaw, she never authorized Dunn to use her check for this smoke shop transaction.
Procedural Background
The State charged Dunn with various offenses in four separate cases. In Case 09 CR 333, the multiple charges were for forgery and theft. Count 8 in the eventual Amended Complaint/Information stated:
"That on or about the 27th day of July, 2009, in Labette County, Kansas, Jerold M. Dunn, then and there being present did unlawfully, feloniously and knowingly issued or deliverf] a check (#1050) which he/she knew had been made, altered or endorsed so that it appeared to have been made, in violation of K.S.A. 21-3710 and against the peace and dignity of the State of Kansas. (Forgery-Passing) Severity level 8 Non-person Felony, (7-23 months).”
In Case 09 CR 210, the State charged Dunn with one count of stalking, based on his behavior at and outside the bank.
All four cases were consolidated and tried to the bench. Dunn was convicted on Count 8 of forgery in Case 09 CR 333, on the stalking count in Case 09 CR 210, and on two counts of violation of the protection order that were part of Case Nos. 09 CR 203 and 09 CR 398. The protection order counts are not at issue in this appeal.
Dunn appealed only his forgery and stalking convictions to the Court of Appeals. On the forgery conviction, he argued for the first time on appeal that Count 8 lacked multiple elements required by the statute defining the crime, K.S.A. 21-3710. He argued that the count “lack[ed] any language alleging the essential element of an ‘intent to defraud.’” He also argued that the count failed to specify any of the listed statutory means of committing the act of forgery and failed to allege that Dunn lacked authority to use the check as he had. These charging document defects prejudiced the preparation of Dunns defense “because he could not reasonably be expected to defend himself against charges of a noncrime,” impaired his ability to plead any conviction in a subsequent prosecution "because there was no way to know what act of his could reasonably have been considered criminal under the statute,” and limited his substantial rights to a fair trial “because he was never fully informed as to what charge he should be defending himself against.” In short, Dunn asserted, the complaint did not “ ‘by any reasonable construction, charge an offense for which the defendant [was] convicted.’ ”
The State characterized each of the defendants challenges to Count 8 as “technical” and asserted that any omissions could not undermine a post-Hall presumption of the charging document’s validity. It urged the Court of Appeals to rule that the count was not “ ‘so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted,’ ” because Dunn and his series of three different defense lawyers were able to mount a “credible” defense to the forgery count, including cross-examination of the smoke shop personnel who accepted the check and Dunn’s own direct testimony about Shaw’s authorization of his use of the check.
A panel of our Court of Appeals affirmed both of Dunn’s convictions. See State v. Dunn, Nos. 106,586 and 106,587, 2012 WL 3290004 (Kan. App. 2012) (unpublished opinion). On the forgery conviction, the panel stated that the question was whether the charging document was sufficient to confer subject matter jurisdiction, and it therefore applied an unlimited standard of review. Observing that Count 8’s omission of an allegation of intent to defraud was undisputed by the State, the panel filled in the blanks by means of Count 4 of the Amended Complaint/Information, a count on which Dunn had not been bound over after preliminary hearing. Count 4 alleged that Dunn unlawfully, feloniously, and knowingly made, altered, or endorsed the same check that was at issue in Count 8 with intent to defraud. 2012 WL 3290004, at *3. The panel also concluded that Dunns attempt to prove that Shaw authorized his use of the check demonstrated that he was not prejudiced in his defense of Count 8 nor impaired in his ability to plead, and that he was not prevented from realizing his right to a fair trial.
This court granted Dunns petition for review. In that petition, Dunn did not argue that the Court of Appeals panel incorrectly applied the post-Hall analysis of his defective complaint challenge raised for the first time on appeal. Rather, he quoted language from our decision in State v. Portillo, 294 Kan. 242, 274 P.3d 640 (2012). In that decision, the court expressed skepticism about the soundness of the Hall differentiation between defective complaint claims raised initially in the district court and those raised for the first time in the appellate court:
"It gives one pause to look closely at how the Hall rule works. During the jury trial, the charging document would be jurisdictionally and fatally defective if it omitted an essential element and the trial court would not have jurisdiction to enter any resulting conviction. However, if the defendant later failed to file a motion for arrest of judgment, the charging document and resulting conviction would somehow acquire retroactive validity. That notion appears to run counter to the rule that subject matter jurisdiction cannot be created by waiver, estoppel, or consent. See [State v.] Ellmaker, 289 Kan. [1132,] 1151, [221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010)]. Likewise, the constraint on raising the jurisdictional issue for the first time on appeal is inconsistent with our holdings that allow a challenge to the district courts subject matter jurisdiction to be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Moreover, we recently declared that appellate courts have ‘no authority to create equitable exceptions to jurisdictional requirements.’ Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011).” Portillo, 294 Kan. at 255.
Dunn argued that the pre-Hall standard for evaluating defective complaints should be applied here and that its application would result in a ruling that the court lacked jurisdiction over Count 8.
After initial oral argument, we requested additional briefs and argument on the following topics:
1. The history of and modem support or lack of support for the Kansas rule that the charging document in a criminal case either succeeds in conferring or fails to confer subject matter jurisdiction on the court.
2. The standard that has been applied and that should be applied to determine whether a charging document in a Kansas criminal case is sufficient, deficient, or fatally deficient — including whether the charging document must contain all material elements of the crime in order to avoid deficiency or fatal deficiency.
3. The historical, current, and appropriate future role of Kansas statutory law and of state and federal constitutional law, including Fifth Amendment due process and Sixth Amendment notice principles, in determining whether a charging document in a Kansas criminal case is sufficient, deficient, or fatally deficient.
4. The controlling facts, holding, reasoning, and preceden-tial value of the United States Supreme Courts opinion in United States v. Cotton, 535 U.S. 625, 629, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002), and cases dealing with the validity of charging documents that have been decided since Cotton in lower federal courts and in other state appellate courts.
5. The correct remedy for a deficient or fatally deficient charging document, when the flaw is identified by a criminal defendant for the first time pretrial, during trial, after trial, on direct appeal, or in a collateral attack on the defendant’s conviction or sentence.
6. The advisability of applying a more strict or less strict district court preservation requirement or standard of review to an appellate challenge to the sufficiency of a Kansas charging document, see Hall, 246 Kan. 728, depending upon the timing of a criminal defendants first assertion of such a claim or the procedural vehicle chosen to advance it.
In response to this courts order, Dunn argued that a sufficient charging document is required to endow a district court with subject matter jurisdiction over a criminal case as well as to adequately charge a crime. Dunn asserted that a charging documents lack of an allegation on any element of the crime makes it not only deficient but also fatally so. Although a Fifth Amendment due process claim or a Sixth Amendment notice claim can be waived and may be subjected to a harmless error review on appeal, a subject matter jurisdiction problem can never be waived and must always be considered by the court. This is true, Dunn argued, even if the question arises on an appellate court s own initiative, and the applicable standard of review should not vary from one case to the next, depending on when or through which procedural mechanism the issue has surfaced.
With regard to Cotton, 535 U.S. 625, Dunn recognized the United States Supreme Courts holding that, under federal law, defects in a charging document no longer necessarily deprive a court of subject matter jurisdiction to adjudicate a case. Further, the Court subjected a charging document error raised for the first time on appeal to the “plain error” test of Federal Rule of Criminal Procedure 52(b). 53 U.S. at 631. Dunn also acknowledged that federal courts following Cotton include the Tenth and Eleventh Circuits. See United States v. Avery, 295 F.3d 1158, 1173 (10th Cir. 2002); United States v. Brown, 752 F.3d 1344, 1350-51 (11th Cir. 2014). And courts in several of our sister states have decided likewise. See, e.g., State v. Ortiz, 162 N.H. 585, 589-90, 35 A.3d 599 (2011). Nevertheless, Dunn argued, neither this court nor. any state court is bound to do so. See State v. Apollonio, 130 Hawaii 353, 357-59, 311 P.3d 676 (2013) (applying Hawaii caselaw); State v. Johnson, 219 W. Va. 697, 700-02, 639 S.E.2d 789 (2006) (applying West Virginia law). Dunn also observed that, despite Cotton and the cases that have followed it, certain flaws in federal charging documents are still regarded as serious enough to deprive the court of subject matter jurisdiction. See United States v. Peter, 310 F.3d 709, 713-16 (11th Cir. 2002) (indictment that fails to charge federal crime insufficient to support subject matter jurisdiction despite defendants guilty plea).
On this case specifically, Dunn argued that K.S.A. 22-3201(b) permitted the State to incorporate allegations from another count or counts in its charging document into Count 8, the count on which Dunn was convicted, but the State did not seek to do so here. Thus, in Dunn’s view, the Court of Appeals panel erred when it looked to Count 4, a count on which Dunn had not even been bound over, to fill in fatal omissions in Count 8.
On the question of remedy, Dunn urged this court to overrule Hall as an aberration that erroneously excused subject matter jurisdictional defects in charging documents. Although he acknowledged that the appropriate procedural vehicle for seeking relief on a claim that a charging document was fatally defective may vary from one stage of a prosecution to another, he argued that all such vehicles are directed at preventing or vacating a void judgment. If the claim has merit, such prevention or vacation is inevitably necessaiy.
The State s response to this court’s order agreed with Dunn that a sufficient charging document is necessary to give tire court subject matter jurisdiction over a prosecution. It equated adequate notice to a defendant of the State s allegations of each of a charged crime’s elements to “sufficiency” for subject matter jurisdiction purposes. In essence, once a defendant is made aware of the allegations that need to be defended, the State argued, it has met any obligation it bore to create or invoke the subject matter jurisdiction of the court. The State divided our previous cases on charging document sufficiency into three groups: (1) those in which a missing element was not essential and the defendant was not misled or disadvantaged by an omission; (2) those in which a missing element was supplied through incorporation of other information in the charging document, which meant the charging document was deficient but not fatally so; and (3) those, as in Portillo, 294 Kan. at 257, and State v. Minor, 197 Kan. 296, 299, 416 P.2d 724 (1966), in which a missing element was so important that the defendant had been convicted of a crime not charged or had been sentenced for a crime he or she could not be expected to defend against, which meant that the charging documents qualified as fatally deficient and that subject matter jurisdiction was lacking.
On Cotton, the State’s response described the facts and holding of the case without additional discussion of its applicability to this case or of any subsequent cases following it.
The State supported continuation of Hall’s differentiation between the standard of review applicable when a defective complaint claim is made for the first time in the district court and that applicable when it is made for the first time on appeal. The State argued that Hall struck a reasonable and appropriate balance between the rights of the accused and the justice and efficiency required by K.S.A. 22-2103, which states that Kansas’ criminal procedure statutes are “intended to provide for the just determination of every criminal proceeding” and are to be construed “to secure simplicity in procedure, fairness in administration^] and the elimination of unjustifiable expense and delay.” In the State’s view, once a defendant has demonstrated that he or she is informed enough by a charging document to mount a defense, judicial review of the documents language should be forgiving.
Dunn filed a reply to the State, in which he noted:
“It appears generally from the States supplemental brief that the State has failed to recognize that the ability of a charging document to confer subject matter jurisdiction is a different matter than the ability of the charging document to adequately inform the accused of the nature and cause of the action against him. While a charging document that does not allege all of the essential elements of the crime might be sufficient to adequately inform the accused of the nature and cause of the action against him — particularly if the accused does not complain about the constitutional sufficiency of the charging document at the time of trial — that same charging document would be fatally defective because it failed to confer jurisdiction on the trial court to enter a judgment of conviction upon a finding of guilt.”
Having reviewed the parties’ arguments, we turn to our analysis.
Subject Matter Jurisdiction Over the Complaint’s Forgery Count
Dunn’s initial, and dominant, appellate issue challenges the sufficiency of Count 8 of the complaint to endow the district court with subject matter jurisdiction over his prosecution for forgery. He relies on Kansas caselaw repeatedly declaring that a Kansas charging document is a jurisdictional instrument and beseeches us to overrule Hall, 246 Kan. 728, which introduced a kinder, gentler- to-the-State appellate review of subject matter jurisdiction challenges to charging documents raised for the first time on appeal.
The question of whether subject matter jurisdiction exists is one of law subject to unlimited review on appeal. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, Syl. ¶ 2, 204 P.3d 562 (2009).
“Subject matter jurisdiction is the power of the court to hear and decide a particular type of action.” State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985); see Cotton, 535 U.S. at 630 (subject matter jurisdiction refers to “‘the courts’ statutory or constitutional power to adjudicate the case’”). The existence of subject matter jurisdiction cannot be waived, and its nonexistence may be challenged at any time. See, e.g., Trotter v. State, 288 Kan. 112, Syl. ¶ 4, 200 P.3d 1236 (2009). A conviction obtained in a court without subject matter jurisdiction is void. See State v. Elliott, 281 Kan. 583, Syl. ¶ 3, 133 P.3d 1253 (2006).
All of the six topics on which we sought additional briefing and argument from the parties were related to this issue. We address them in the order listed with the exception of the fourth on Cotton and its progeny. We address Cotton first because of its relevance to our identification of the law controlling various aspects of this decision.
United States v. Cotton
In Cotton, the United States Supreme Court considered a challenge to an indictment that failed to allege the quantity of cocaine and cocaine base that defendants had allegedly conspired to distribute and possess with intent to distribute. 535 U.S. at 627-28. Under the applicable federal law, a conviction for a drug offense involving a detectable quantity of cocaine or cocaine base carried a maximum imprisonment term of 20 years. For convictions involving 50 grams or more of cocaine base, the maximum sentence increased to life imprisonment. After the jury convicted defendants, the federal district court judge found, based on trial testimony, that defendants were responsible for at least 500 grams of cocaine base and imposed enhanced sentences. The defendants did not object in district court to the fact that their sentences were based on a quantity not alleged in the indictment.
On appeal, the defendants argued that their sentences were invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because the issue of drug quantity was neither alleged in the indictment nor submitted to the jury. The Court of Appeals for the Fourth Circuit reviewed for plain error based on the defendants’ failure to object before the district court. Ultimately, the Court of Appeals vacated defendants’ sentences “on the ground that ‘because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional, ... a court is without jurisdiction to . . . impose a sentence for an offense not charged in the indictment.’” Cotton, 535 U.S. at 629. The Court of Appeals relied on Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887), which had concluded that, because of a defective indictment, “ ‘the jurisdiction of the offence [was] gone, and the court [had] no right to proceed any further in the progress of the case for want of an indictment.’” Cotton, 535 U.S. at 629 (quoting Bain, 121 U.S. at 13).
The Supreme Court rejected “the Court of Appeals’ conclusion that die omission from the indictment was a ‘jurisdictional’ defect.” 535 U.S. at 629. Chief Justice Rehnquist wrote that post-Bain cases soon departed from Bain’s idea that defects in an indictment deprived a court of jurisdiction. See Lamar v. United States, 240 U.S. 60, 36 S. Ct. 255, 60 L. Ed. 526 (1916) (failure of indictment to charge a crime not jurisdictional defect, “goes only to the merits of the case”). He explained that the “‘expansive notion’” of jurisdiction typical of the Bain-era cases was a “product of an era in which the Court’s authority to review criminal convictions was greatly circumscribed.” 535 U.S. at 629 (early authority to afford habeas relief limited to criminal cases in which convicting court lacked jurisdiction). The modern understanding of jurisdiction instead referred to “ ‘the courts’ statutory or constitutional power to adjudicate the case.’” 535 U.S. at 630 (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed 2d 210 [1998]). The Court then applied the federal plain error test to the defendants’ forfeited claim. Because the evidence that the conspiracy involved at least 50 grams of cocaine base was “ ‘overwhelming’ and ‘essentially uncontroverted,’ ” the Court held that defendants’ rights were not substantially affected, reversing the Court of Appeals. 535 U.S. at 633-34.
Since Cotton, as Dunn has recognized, both the Tenth and Eleventh Circuits have applied its general rule that the absence of an element of the crime in a charging document does not doom subject matter jurisdiction. But the Eleventh Circuit has neverdieless identified one situation in which an indictment that failed to charge a federal crime was fatal to a prosecution.
In the Tenth Circuit’s Avery, 295 F.3d at 1164, defendant Jonathan Avery was indicted by a federal grand juiy on eight counts, which included charges that Aveiy possessed cocaine base with an intent to distribute and knowingly possessed specific firearms in relation to a drug trafficking crime. Aveiy argued on appeal that his convictions tied to possession of a firearm in furtherance of a drug trafficking crime must be reversed because of deficiencies in the indictment, including deficiencies that deprived the trial court of jurisdiction. 295 F.3d at 1164. The panel rejected Avery’s argument, relying on United States v. Prentiss, 256 F.3d 971, 981 (10th Cir. 2001) (en banc), in which the court had stated: “‘An indictment’s failure to allege an element of a crime is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction, i.e., a court’s constitutional or statutory power to adjudicate a case.’ ” Avery, 295 F.3d at 1173. The panel then noted that the United States Supreme Court had endorsed this position in Cotton. In the panel’s view, Prentiss and Cotton “foreclosed squarely” Avery’s challenge. Avery, 295 F.3d at 1173.
In the Eleventh Circuit, the panel in Brown, 752 F.3d at 1345, applied the holding of Cotton to reject defendant Danielle Brown’s argument that her indictment was defective because it did not expressly allege the mens rea element of the charged offense. Brown had pleaded guilty to “knowingly receiving 481 counterfeit United States Postal Money Orders from a foreign country with the intent to pass and publish these same counterfeit money orders as true.” 752 F.3d at 1345. The panel discussed a series of pre-Cotton Eleventh Circuit cases holding that omission of an element of a crime from an indictment did not deprive a court of jurisdiction. Brown, 752 F.3d at 1349-50. The panel then noted that the United States Supreme Court had confirmed the Eleventh Circuit’s position when it addressed the questions presented in those cases in Cotton. Brown, 752 F.3d at 1350. The panel acknowledged the distinction between an indictment that fails to allege an element of a crime and one that fails to constitute a crime. “[Tjhere is no jurisdictional defect when the ‘indictment fail[s] to allege an element of the charged offense,’ but there is one when the indictment affirmatively alleges conduct that does not constitute a crime at all because that conduct falls outside the sweep of the charging statute.” 752 F.3d at 1352 (quoting Peter, 310 F.3d at 714).
As pointed out by Dunn, the earlier Peter panel of the Eleventh Circuit had persisted in regarding a defective complaint as a subject matter jurisdiction rather than a statutory problem. Peter arose on coram nobis because defendant Michael J. Peter did not challenge the sufficiency of the charging document to support the courts jurisdiction until after he had entered a guilty plea and served his sentence. The alleged flaw was that the conduct charged and admitted to was not proscribed by the federal statute invoked, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. The panel distinguished the recently decided Cotton:
“Unlike the error asserted here, there was no claim in Cotton that the indictment consisted only of specific conduct that, as a matter of law, was outside the sweep of the charging statute. Rather, the conviction reviewed in Cotton had been obtained on an indictment that unquestionably described the offense of conspiring to distribute and to possess with intent to distribute cocaine. The indictment omission went only to the legality of the defendants’ sentences. Furthermore, the prosecutions evidence had been ‘overwhelming and essentially uncontroverted’ on tire very point of fact which the indictment had erroneously failed to allege. [Citation omitted.] Hence the Supreme Court did not address whether the insufficiency of an indictment assumes a jurisdictional dimension when tire only facts it alleges, and on which a subsequent guilty plea is based, describe conduct that is not proscribed by the charging statute.” Peter, 310 F.3d at 714.
Ultimately, the panel decided “it is clear under these circumstances that the Government’s proof of the alleged conduct, no matter how overwhelming, would have brought it no closer to showing the crime charged than would have no proof at all,” and “Peter’s innocence of the charged offense appears from the very allegations made in the superseding information, not from the omission of an allegation requisite to liability.” 310 F.3d at 715. Based on this, the district court, although broadly endowed with original and exclusive jurisdiction over all offenses against the laws of the United States, was without jurisdiction to accept Peter’s plea. Peter, 310 F.3d at 715.
These federal cases are instructive in this case on at least three points.
First, they demonstrate that any Kansas rule that a charging document including eveiy element of a crime is essential to the existence of subject matter jurisdiction lias no current basis in federal law. Since Cotton overruled Bain, if the rule exists at all, it must be supported by state law — in our case, the Kansas Constitution, Kansas statute, or Kansas common law. Both Hawaii and West Virginia courts have grasped and agreed on this source-of-law lesson from Cotton. See Apollonio, 130 Hawaii at 355-59 (applying Hawaii law); Johnson, 219 W. Va. at 700 (applying West Virginia law).
Second, Cotton’s evaluation of whether there was federal plain ei'ror requiring reversal reminds us that, to the extent a defective complaint issue before our court is dependent on an alleged impairment of constitutional due process or notice under the federal Bill of Rights, federal law informs the standard of review for error and for harmlessness. These inquiries are distinct from state law inquiries about charging document error and its effect or lack of effect on the district or appellate courts subject matter jurisdiction. Conflation of these analyses and their governing law is to be avoided. . .
And third, based on Peter, we recognized that there may be cases in which the conduct alleged in a charging document, even if a defendant has admitted to engaging in it, does not constitute a violation of the criminal statute invoked.
Historical Support for Halls Jurisdictional Instrument Ride
The first issue on which we sought the parties’ additional input was “[t]he history of and modern support or lack of support for the Kansas rule that the charging document in a criminal case either succeeds in conferring or fails to confer subject matter jurisdiction on the court.” The responses we received were something less than robust. In essence, Dunn asserted that the rule exists and the State capitulated. Our research has revealed that the stability of the Kansas jurisdictional instrument rule, though often recited, is highly questionable.
The rule originated in 1966 with a pronouncement in Minor, 197 Kan. 296, although Hall would neither cite Minor nor acknowledge its paternity. We discuss Minor itself more fully below, but, before doing so, turn to an examination of state constitutional law, statutory law, and caselaw leading up to its pivotal link between charging documents and subject matter jurisdiction.
To begin with, at the time Minor was decided, Article 3, Section 1, of the Kansas Constitution had vested “judicial power of this state” in the “supreme court, district court, probate courts, justices of the peace, and such other courts, inferior to tire supreme court, as may be provided by law.” Since 1972, the passage has located the judicial power of the state “exclusively in one court of justice,” divided into the Supreme Court, “district courts, and such other courts as are provided by law.” Another section, now found at Article 3, Section 6(b), has always provided that the “district courts shall have such jurisdiction in their respective districts as may be provided by law.”
As our predecessors recognized in Hall, several statutes also have governed. They continue, when given appropriate attention, to reinforce the constitutions language and clarify the true source of district court subject matter jurisdiction over criminal cases. K.S.A. 20-301 or a predecessor provision has provided since 1868 that there “shall be in each county” a district court that “shall have general original jurisdiction” on all matters, “both civil and criminal,” unless otherwise provided by law. See G.S. 1868, ch. 28, art. 1, sec. 1. In addition, since 1868, Kansas statutes have provided that “[t]he district courts shall have exclusive original jurisdiction” in all felony cases. See G.S. 1868, ch. 31, art. 10, sec. 308. K.S.A. 22-2601 now provides that, except as provided in K.S.A. 12-4104 dealing with the jurisdiction of municipal courts, “the district court shall have exclusive jurisdiction to try all cases of felony and other criminal cases arising under the statutes of the state of Kansas.” See also Chelf v. State, 46 Kan. App. 2d 522, 529, 263 P.3d 852 (2011) (subject matter jurisdiction vested by statute, constitution) (citing Kingsley, 288 Kan. at 395).
Meanwhile, Kansas statutes have historically provided and still provide for several different mechanisms to commence or institute a criminal prosecution. See G.S. 1868, ch. 82, art. 5, sec. 36 (complaint); G.S. 1868, ch. 82, art. 6, sec. 66 (indictment, information). Since 1976, K.S.A. 22-3201(a) has provided that generally prosecutions in district court “shall be upon complaint, indictment or information.” See also K.S.A. 22-2301(1) (“[ujnless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate”). K.S.A. 22-2202 defines a complaint as a “written statement under oath of the essential facts constituting a crime.” (Emphasis added.) K.S.A. 22-3011 has set out the process leading to indictment, and K.S.A. 22-2303(1) has set out the process for initiating prosecution by filing an information. In addition to the usual mechanisms of complaint, indictment, or information, “in extreme cases, upon affidavits filed ... of a commission of a crime,” K.S.A. 22-2301(2) has permitted a district judge to order a county attorney to institute criminal proceedings.
Since 1970, K.S.A. 22-3201 has set forth the required contents for charging documents and has noted ways in which the charging document may be amended by the court or the State or be augmented after a defense motion for a bill of particulars:
“(b) The complaint, information or indictment 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. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense. An indictment shall be signed by the presiding juror of the grand jury. An information shall be signed by the county attorney, the attorney general or any legally appointed assistant or deputy of either. A complaint shall be signed by some person with knowledge of the facts. Allegations made in one count may be incorporated by reference in another count. The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule and regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall [not be] ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.
“(c) When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategoiy in the crime seriousness scale.
"(d) The court may strike surplusage from tire complaint, information or indictment.
“(e) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of tire defendant are not prejudiced.
“(f) When a complaint, information or indictment charges a crime but fails to specify tire particulars of tire crime sufficiently to enable the defendant to prepare a defense tire court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state’s evidence shall be confined to the particulars of the bill.” (Emphasis added.)
This statute’s focus on inclusion of facts constituting a crime in Kansas is reminiscent of its earliest antecedent. Chapter 82, Article 8, Section 103 of the General Statutes of Kansas 1868, effective 1868, provided that an indictment or information “must contain: ... [a] statement of the facts constituting the offense, in plain and concise language, without repetition.” (Emphasis added.) Section 104 of the same Article stated that the indictment or information must be “direct and certain, as it regards the party and the offense charged.” Section 109 stated that the indictment would be sufficient if it included, among other things, a statement that “the offense was committed within the jurisdiction of the court, or is triable therein,” which appears to be a reference to territorial rather than subject matter jurisdiction. These concepts endured through several changes in statutoiy numbering during the 102 years between 1868 and 1970. See G.S. 1949, 62-1004; G.S. 1949, 62-1005; G.S. 1949, 62-1010.
We also note that the possibility of different forms of cure under Subsections (d), (e), and (f) of K.S.A. 22-3201 indicate that a court is not automatically deprived of subject matter jurisdiction by a defect in a charging document. In addition, Subsection (b) allows a prosecution to be continued in spite of an error or omission in tire required citation to the provision of law alleged to be violated, unless a defendant has suffered prejudice. This also indicates at a minimum that not all errors in complaints, indictments, or infor-mations are fatal to subject matter jurisdiction.
Again, these possibilities of at least limited district court cure for a charging document that is in some manner deficient have deep roots in Kansas law. See G.S. 1868, ch. 82, art. 6, sec. 72 (“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.”). In addition, Chapter 82, Article 8, Section 110 provided that no indictment or information could be quashed or set aside
“for any of tire following defects: First, For a mistake in the name of the court or county in the title thereof. Second, For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in tire indictment or information. Third, That dates and numbers are represented by figures. Fourth, For an omission of any of the following allegations, viz: ‘With force and arms,’ ‘Contrary to tire form of the statute,’ or, ‘Against the peace and dignity of the state of Kansas.’ Fifth, For an omission to allege that the grand jurors were impaneled, sworn or charged. Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor Seventh, For any other defect or imperfection which does not tend to the prejudice of tire substantial rights of the defendant upon tire merits.”
An indictment or information could be quashed under this early enactment when “it appear[ed] upon its face” that the facts stated did not “constitute a public offense.” G.S. 1868, ch. 82, art. 11, sec. 225.
Since 1970, K.S.A. 22-3208 has discussed at least some of the ways in which a defendant should challenge an error in the commencement of a prosecution. It takes pains to provide that a challenge to a charging document for failure to show jurisdiction in the court or to charge a crime need not be raised prior to plea or trial.
“(3) Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other tiran that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but he court for cause shown may grant relief from the waiver. Lack of jurisdiction or tire failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.
“(4)... A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fafls to show jurisdiction in the court or to charge a crime.”
A different subsection of the same statute further suggests that neither a defect in a complaint, indictment, or information nor another type of defect in the institution of a prosecution necessarily deprives the court of subject matter jurisdiction, because the defendant may be held in custody or on an appearance bond continued up to 1 day after relief is granted on a motion challenging the defect. See K.S.A. 22-3208(6).
Once a district court judgment has been entered and before a direct appeal, Kansas statutes also have provided since 1868 that a defendant may file a motion for arrest of judgment if the complaint, indictment, or information “does not charge a crime or if the court was without jurisdiction of the crime charged.” K.S.A. 22-3502. At the time of Dunn’s trial and now, the time limit for such a motion has been 14 days after verdict or finding of guilt or a plea of guilty or nolo contendere, unless the court extends the deadline. This availability of a last-ditch district court procedural mechanism for challenging the sufficiency of a charging document or the absence of jurisdiction, whose availability was limited to 10 days in 1990 when Hall as decided, eventually proved particularly important to this court.
Like the constitutional and statutoiy provisions with which we have become reacquainted above, caselaw predating Minor did not invariably support its characterization of charging documents as tire instruments conferring or bestowing subject matter jurisdiction on the courts. And it did not make all errors in them fatal to that jurisdiction.
Under Kansas common law, certain components of a charging document and certain procedures concerning it have been required, but courts have aimed from the beginning to leave strict “technical certainty” behind. See Wessels v. Territory, McCahon 100, 1 Kan. (Dasslers ed.) 525, 1860 WL 3387 (1860) (citing Acts of 1859, Section 95 at 197) (good indictment names defendant, shows offense committed within territorial jurisdiction of court, sets forth offense in plain language; “the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction”).
In tire first few decades of statehood, for example, the court ruled that it was necessary for a charging document to originate with the proper authority. See Jackson v. State, 4 Kan. 150 (1867). It also must demonstrate that the court possessed territorial jurisdiction. See Territory v. Freeman, McCahon 56, 1 Kan. (Dassler’s ed.) 491, 1858 WL 4421 (1858); see also State v. Hoffman, 171 Kan. 116, 117, 119, 229 P.2d 768 (1951) (embezzlement defendant successfully moved to quash amended information; defendant had absconded to California, had there refused victim s demand for moneys return; no allegation defendant gained possession of money in Reno County, Kansas). And it must allege facts that constituted a Kansas offense. See State v. Pittman, 10 Kan. 593, 597-98 (1873) (information charged defendant with selling liquor without license from county, failed to allege defendant lacked license from city; no crime charged); see also State v. Pitzer, 23 Kan. 250, 252 (1880) (indictment failed to allege lack of license for all permissible means of selling liquor; want of one means does not negate existence of others; grant of motion to quash affirmed for indictments lack of “essential element”). But a mere technical error with no ill effect on the substantial rights of the defendant could be disregarded. See State v. Carey, 56 Kan. 84, 87-88, 42 P. 371 (1895) (failure to affix seal immaterial, not prejudicial).
State v. Hinkle, 27 Kan. 308 (1882), is illustrative of 19th-centu-ry analysis of charging documents. In that case, the court reversed tire defendant’s conviction because the complaint that launched tire prosecution failed to show territorial jurisdiction; it did not allege that the crime occurred in Brown County. Before reaching that issue, however, the court addressed the defendant s argument that the proceeding was wholly invalid because the complaint had not been verified except through the fifing of an amended version. The defendant essentially asserted a lack of subject matter jurisdiction: “[Tjhere was at the commencement of the trial in the district court no verified complaint on file, and . .. therefore there was no valid proceeding pending against defendant, nothing which could be amended, and. .’. the court had no power to permit tire fifing of a new and verified complaint.” 27 Kan. at 310. The court rejected this argument, holding: “There was a prosecution pending against the defendant, a complaint filed whether defective or not; and if defective, the court had the power to permit the filing of a new and perfect complaint at any stage of the proceedings. (Comp. Laws 1879, ch. 83, § 22.)” 27 Kan. at 310.
Another early case, State v. Brown, 21 Kan. 38 (1878), demonstrated the necessity of stating facts that constitute a Kansas crime. In Brown, the court reversed defendants first-degree murder conviction because the indictment failed to allege either explicitly or implicitly that the defendant killed the victim with premeditation. Brown, 21 Kan. at 49-51; see also State v. Frazier, 53 Kan. 87, 91-92, 36 P. 58 (1894) (reversing attempted rape conviction and remanding case for further proceedings because of informations failure to allege specific overt act; essential element of offense should be set forth in charge “so that the court may see whether or not the law has been violated, and so the accused may know to what he must malee answer”). The court noted that the indictment may have been sufficient to charge second-degree murder, but not first-degree murder, and it reversed and remanded for retrial. Brown, 21 Kan. at 48, 50-52, 54. It is important to note that the court did not dismiss the case entirely because of an absence of subject matter jurisdiction, and it did not hold that the defendant stood convicted of the lesser offense of second-degree murder. It also did not discuss why either of these remedies was not appropriate. It simply allowed the parties to start over, each fully informed about exactly what was at stake.
In other cases involving alleged omissions from charging documents, the court rejected arguments that a prosecution was flawed from its initiation. In State v. McGaffin, 36 Kan. 315, 318-20, 13 P. 560 (1887), the information charging murder failed to include the words “malice aforethought” or “with intent to kill” but the court decided other language succeeded in conveying the same meaning. See also State v. Hillis, 145 Kan. 456, 458, 65 P.2d 251 (1937) (informations use of the words “unlawfully,” “steal” connote criminal intent, follow language of statute; judgment in favor of defense reversed, cause remanded with instructions to overrule motion to quash information); State v. Goodrich, 136 Kan. 277, 278-79, 15 P.2d 434 (1932) (no error in refusal to grant motion to quash information in worthless check prosecution; defendants challenge on basis of missing elements of crime baseless); State v. Morris, 124 Kan. 505, 507-08, 260 P. 629 (1927) (omission of “intent to defraud” from charging document in forgery prosecution not fatal to defendant’s conviction; missing element of offense mere “technical averment”); State v. Moore, 110 Kan. 732, 733, 205 P. 644 (1922) (motion to quash information charging attempted rape correctly overruled; information set out acts done by defendant in attempt charged); State v. Johnson, 92 Kan. 441, 443-46, 140 P. 839 (1914) (information contained eveiy element of offense of first-degree murder, including deliberation inferred from other explicitly stated elements; Brown distinguished); State v. Calhoun, 75 Kan. 259, 262, 88 P. 1079 (1907) (every essential element of forgery by fraudulent passing of forged instrument included in charging document despite inclusion of language describing other statutorily defined method of committing forgeiy; conviction affirmed); State v. Learned, 73 Kan. 328, 333, 85 P. 293 (1906) (information charging incest sufficient even though it did not follow language of statute exactly; “It has been so frequently decided by this court that it is not requisite that the exact language of the statute be used, but that other language of like import may be employed, that the citation of the cases is unnecessary.”); State v. Jessup, 42 Kan. 422, 424, 22 P. 627 (1889) (charge including reference to burning bam to defraud insurer adequate to convey essential element barn insured at time of fire).
We also note that other cases from as early as the Broum-Mc-Gaffin era held that differing appellate standards of review would be applied to charging document challenges, depending on the nature or timing of the objection raised. See State v. Decker, 52 Kan. 193, 194-95, 34 P. 780 (1893) (challenge to missing element of crime in charging document allowed when raised in motion for new trial, despite no motion to quash or motion to arrest judgment; conviction for removing building from mortgaged property without permission of assignee reversed); Jessup, 42 Kan. at 423-24 (failure to file motion to quash, motion to arrest judgment could end case; motion for new trial construed as motion to arrest judgment to reach merits of information s sufficiency); City of Kingman v. Berry, 40 Kan. 625, 627, 20 P. 527 (1889) (“[djefects in a criminal pleading which might be held bad in a motion to quash, if one was made, are not always sufficient, after a verdict of guilty, to arrest a judgment”; conviction on complaint failing to allege obstruction of street, sidewalk upheld; “unlawfully kept and maintained” barrels of oil adequate equivalent); State v. Segermond, 40 Kan. 107, 108, 112, 19 P. 370 (1888) (objection to information lodged after verdict “must be considered in a different fight here than as if such objections had been properly made at the trial”; “if on examination it can be seen that the information was sufficiently explicit, first, to enable the court to say that, admitting the facts, it had jurisdiction; second, to apprise the defendant of the nature of the offense charged, so as to give him an opportunity to make his defense; and third, to make the judgment certain and available as a bar to any subsequent prosecution for the same offense” then no remedy due; allegation that defendant took “twenty-five dollars in money” not specific enough to provide sufficient notice under Kansas Constitution Bill of Rights; robbery conviction reversed); State v. Henry, 24 Kan. 457, 459 (1880) (“[Tjhe defendant, after taking his chances of an acquittal upon the merits of the action, cannot then object to the information, because it has not stated the offense in as definite terms as it might have done.”). These cases indicated that a perfect charging document was not indispensable to the existence of subject matter jurisdiction.
The earliest Kansas appellate case we have found that explicitly separated the concept of subject matter jurisdiction from the concept of charging document sufficiency is the original Court of Appeals’ decision in State v. Hook, 4 Kan. App. 451, 46 P. 44 (1896), overruled on other grounds Learned, 73 Kan. at 331. In Hook, the defendant was charged with adultery, and he challenged the information on several grounds, including lack of jurisdiction and a failure to state facts sufficient to constitute an offense. The court made quick work of the jurisdictional challenge, stating without any further elaboration or citation that the district court had subject matter jurisdiction of the crime charged. 4 Kan. App. at 454. It also observed that the court had acquired personal jurisdiction over the defendant when he gave a recognizance for his appearance at the court term. 4 Kan. App. at 454-55. Still, the information was defective and fatally so, because it did not charge a public offense. 4 Kan. App. at 456-58. The relief granted by the court was reversal of the adulteiy conviction and remand to the district court “with directions to set the judgment of conviction aside and to sustain the motion to quash the information.” 4 Kan. App. at 458.
Other early cases filling the decades leading to Minor in 1966 demonstrate that this court, over time, has attempted to explain the relationship between subject matter jurisdiction on the one hand and the language of the charging document on the other hand in an imprecise assortment of ways.
In James v. Amrine, 157 Kan. 397, 140 P.2d 362 (1943), the court considered the sufficiency of an information collaterally attacked in a habeas proceeding. The defendant claimed that the information erroneously alleged the date of the crime, placing it 6 months after his trial, which rendered his conviction and sentence void because the district court was divested of subject matter jurisdiction. This court took pains to say that the habeas action was not based upon a denial of due process. Instead, and in contrast to the language of an earlier opinion, State v. Keester, 134 Kan. 64, 4 P.2d 679 (1931), it described the issue before it as whether the information “was sufficient to give the court jurisdiction to enter upon inquiry and make a decision.” (Emphasis added.) James, 157 Kan. at 399. The court held that the obvious clerical error “did not render the information void or vitiate the subsequent proceedings,” noting that it would have been subject to correction by amendment had it been noticed earlier than 18 years after judgment was entered. 157 Kan. at 400.
Three years later, in State v. Hazen, 160 Kan. 733, 165 P.2d 234 (1946), this court focused on whether an information conformed to the statutory definition of the crime of assault. The defendant had challenged the information, including filing a motion to quash and a motion to arrest judgment in the district court and making an issue of it on direct appeal. This court noted that the common law absolutist .requirement that an information “conform strictly to established formality and charge an offense with technical accuracy and nicety of language” had been superseded by more relaxed statutory standards, including that the information state ‘“the facts constituting the offense, in plain and concise language, without repetition.’” (Emphasis added.) 160 Kan. at 736-37 (quoting G.S. 1935, 62-1004). It also specifically quoted statutory language prohibiting quashing an information “'[flor any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged’” or “‘[f]or any other defects or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.’” 160 Kan. at 737 (quoting G.S. 1935, 62-1011).
"Since the enactment of the sections of the statute just quoted this court has definitely committed itself to the general doctrine that in charging statutory offenses, except in tiróse cases in which tire statute simply designates and does not describe or name the constituent elements of tire offense, informations are sufficient if they charge an offense in the language of the statute. Even the statutory words need not be strictly pursued but others conveying the same meaning may be used.” 160 Kan. at 737.
Under this rubric, the information in Hazen stated a public offense. The charge was made “substantially in the words of the statute” and did not prejudice the defendant because it “fairly informed” him of the offense charged. The fact that it included additional information about the “means and manner of the assault” did not defeat it. Nor did its failure to include an affirmative allegation that the defendant "intended or attempted to do [a specific person] bodily, physical, or corporal injury” make it insufficient. Hazen, 160 Kan. at 738-39.
In summary, applying the greatest degree of synthesis we can muster, interpreting caselaw leading to Minor in 1966 indicated that charging documents merely needed to show that a criminal case had been filed in the correct court, that the court’s exercise of territorial jurisdiction would be appropriate, and that the facts alleged would constitute a crime under Kansas statutes. Not all errors or omissions would inevitably be fatal to the entire prosecution. Some were subject to correction or could be waived by the defendant or disregarded by the court.
Minor, 197 Kan. 296, shifted the Kansas common law on the sufficiency of charging documents in at least two consequential ways.
First, the decision categorically stated what some among earlier cases may merely have been read to suggest: Charging documents must state every statutory element of the crime alleged in order to be deemed sufficient. Second, it made such sufficiency an explicit precondition to the existence of district court subject matter jurisdiction. See Minor, 197 Kan. at 299; see also State v. Rasch, 243 Kan. 495, 498, 758 P.2d 214 (1988) (discussing the effect of Minor). These two shifts removed any possibility that many charging document errors or omissions could be deemed harmless, nonfatal defects, because any conviction obtained in a proceeding before a court lacking subject matter jurisdiction is void. The jurisdictional nature of the error also meant that a charging document problem could be raised by a defendant at any time, without any negative impact on his or her remedy attributable to the choice of procedural vehicle or delay in employing it. See Minor, 197 Kan. at 299 (information failing to allege essential element of crime cannot be cured).
In Minor, the defendant had been convicted of manslaughter in the first degree. The wording of the charging document did not match that of the statute violated, failing to allege that the killing would have been a murder at the common law. In the court s view, “[a]t best, the information charges manslaughter in the fourth degree” but, even then, it could not “be commended as a model of draftsmans art.” 197 Kan. at 298. The court cited no law beyond one Ohio case — in which the court itself had described the indictment defect, as a failure to charge any offense — to support its holding that a charging document including all essential elements of an alleged crime was required to endow the district court with subject matter jurisdiction. It stated simply: “In a criminal action pending in the district court, tire information or indictment is the jurisdictional instrument upon which the accused stands trial.” 197 Kan. at 299 (citing State v. Cimpritz, 158 Ohio St. 490, 494, 110 N.E.2d 416 [1953]). The courts election to raise the problem it perceived in the information sua sponte further emphasized the subject matter jurisdiction character of its ruling. Minor, 197 Kan. at 300-01.
Several cases decided after Minor and before Hall reflexively adhered to the new analytical pattern of Minor. See, e.g., State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987) (first-degree murder charge in information fatally defective for failure to allege that killing of victim was done maliciously, deliberately, and with premeditation); State v. Jackson, 239 Kan. 463, 467, 721 P.2d 232 (1986) (indecent liberties charge in complaint fatally defective for failure to allege victim not married to accused, victim less than 16 years old); State v. Slansky, 239 Kan. 450, 452-53, 720 P.2d 1054 (1986) (conviction for aggravated assault void; complaint lacked allegation defendant had apparent ability to do bodily harm); State v. Howell & Taylor, 226 Kan. 511, 512-14, 601 P.2d 1141 (1979) (aggravated robbery conviction void because of complaint’s failure to allege taking was by force, threat of great bodily harm; if a charging document “fatally defective,” then, even if all of its allegations proved, defendant still not guilty of statutory crime; “evidence introduced at trial to show commission of the crime sought to have been charged and the jury instructions thereon have no bearing on” issue of complaint’s sufficiency); State v. Giddings, 216 Kan. 14, 19-20, 531 P.2d 445 (1975) (second count of forgery cannot support subject matter jurisdiction over that crime, given omission of essential element of intent to defraud; void conviction must be set aside); State v. Baker, 197 Kan. 660, 662-64, 421 P.2d 16 (1966) (conviction of second-degree burglary void, set aside because of information’s failure to allege burglary occurred “in the nighttime,” an essential element of the offense; jury verdict on sufficient evidence of nighttime occurrence and after instruction including missing element do not cure fatal information error).
Other cases decided in this period were somewhat more reflective than reflexive. Although they took no direct issue with Minors link between charging document sufficiency and the existence of subject matter jurisdiction, they treated sufficiency as a more elastic concept. Viewed in retrospect and taken together, it is apparent to us that these cases foreshadowed the Hall decision; see State v. Wade, 244 Kan. 136, 140-42, 766 P.2d 811 (1989) (distinguishing Jackson, 239 Kan. 463; (information’s omission of statutory element of aggravated criminal sodomy — victim not married to defendant — excused when information included victim’s age of 5; common-sense construction, legal impossibility of marriage eliminate need for allegation); State v. Micheaux, 242 Kan. 192, 194-203, 747 P.2d 784 (1987) (discussing history of charging document sufficiency in Kansas; most common rule allows words communicating same meaning as those in criminal statute to be used in charging document; “jwjhile an information may be insufficient if it fails to allege an essential element of the offense, nevertheless, an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied”; welfare fraud conviction upheld); State v. Bird, 238 Kan. 160, 166-68, 708 P.2d 946 (1985) (information not fatally defective despite no allegations that defendant s conduct in soliciting murder “felonious,” certain manner or means to be used to aid and abet, named person to be aided; defendant could have moved to quash information, sought bill of particulars; defendant not misled, disadvantaged; because information charged crime, per statute, other objections to institution of prosecution waived); State v. Maxwell, 234 Kan. 393, 397-99, 672 P.2d 590 (1983) (omission of element cured by other information given to defense); State v. Lucas, 221 Kan. 88, 89-90, 557 P.2d 1296 (1978) (emphasizing statutory governance of charging document contents, need for basic clarity under modern rationale for pleading in criminal cases; aggravated robbery charge in information sufficient despite lack of allegation of criminal intent; “feloniously” implies missing element); State v. Lora, 213 Kan. 184, 187-88, 515 P.2d 1086 (1973) (failure to charge crime underlying aggravated burglary not fatal to case).
And at least one case allowed an oral motion to cure a defect in a charging document that had omitted an essential element of the crime charged, a fix inconsistent with the idea that the charging document must bestow subject matter jurisdiction on the district court from tire commencement of the prosecution. See Rasch, 243 Kan. at 496-501 (defendant charged with aggravated robbery; complaint failed to allege “taking was by force or threat of harm,” an essential element of aggravated robbery; before trial, prosecutor orally moved to amend with no objection from defendant, journal entry filed ordering complaint amended; held, oral amendment cured jurisdictional defect).
This brings us to 1990’s Hall, 246 Kan. at 753-65, the precedent Dunn urges us to abandon here. It is evident that the Hall court attempted to stem what it believed to be a tide of appellate challenges to convictions for deficiencies in charging documents. Hall, 246 Kan. at 753 (referencing increase in convictions rendered void for failure to allege all essential elements of charged crime).
Defendant Gary Lee Hall challenged his theft conviction under Count II on the ground that the charging document had omitted an essential element of the crime, i.e., the adverb “permanently” when stating the nature of his intention to deprive the owner of his cattle. Count II also did not incorporate Count III by reference; Count III had included the word “permanently” in its description of Halls intent to steal a truck and trailer hauling the Count II cattle. See K.S.A. 22-3201(b) (allowing incorporation of language from different count). Hall had not raised the defective complaint issue in the district court, among other things, failing to file a post-conviction motion for arrest of judgment.
The court recognized its prior holdings that “an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction on that offense must be reversed.” 246 Kan. at 747 (citing Wilson, 240 Kan. at 607). Under this rule, Halls conviction on Count II could not stand. But the court was frankly reluctant to reach this result, remarking on prior “mistaken judicial blending of the concepts of jurisdiction’ ” and saying:
“We note: (1) the jury was instructed properly as to all of the elements of theft in Counts II and III; (2) the information in Counts II and III cited the theft statute ...; (3) no bill of particulars was requested by Hall. . .; (4) no motion for arrest of judgment was filed...; (5) Hall was represented by experienced retained counsel; and (6) no argument has been advanced by Hall that the omission of ‘permanently’ in Count II of the information prejudiced him in any way or in any way interfered with the preparation of his defense. We have reversed Count II based upon precedent.” 246 Kan. at 758.
The court specifically acknowledged a criminal defendants right to notice of the charges against him or her under Section 10 of the Bill of Rights in the Kansas Constitution and the United States Constitutions Sixth Amendment. 246 Kan. at 753. Borrowing from Professor Charles Wrights treatise focused on federal law, the court emphasized that the “fundamental purpose” of a charging document is “to inform the defendant of the charge so that the defendant may prepare a defense.” 246 Kan. at 754 (citing 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 365). Focusing on the notice purpose of charging documents, the court continued:
“The test for sufficiency ought to be whether it is fair to require tire defendant to defend on the basis of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just mentioned. The information is sufficient, even if an essential averment is faulty in form, if by a fair construction it may be found within tire text. All parts of the pleading must be looked to in determining its sufficiency.” 246 Kan. at 754.
The court also cited and discussed potentially pertinent Kansas statutes, including K.S.A. 20-301 (each Kansas county shall have district court of record with original jurisdiction of all civil, criminal matters, unless otherwise provided by law); K.S.A. 22-2601 (district court holds exclusive jurisdiction to try all felony, other criminal cases); K.S.A. 22-2103 (criminal code intended to provide just determination of every criminal proceeding); K.S.A. 22-2202 (subsections define complaint, information, indictment); K.S.A. 22-3201 (charging document requirements; right to file written motion for bill of particulars to enable preparation of defense; possibility of amending charging document); K.S.A. 22-3502 (arrest of judgment on motion); and K.S.A. 22-3503 (arrest of judgment without motion).
Hall focused on the historical antecedents for statutes allowing arrest of judgment, observing that the permissible grounds for motions for arrest of judgment included “‘\f\irst, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense.’” 246 Kan. at 755 (quoting G.S. 1949, 62-1605).
The Hall court also recognized that not all prior cases had treated every charging document defect as automatically prejudicial, and thus reversible, error. 246 Kan. at 760 (discussing Maxwell, 234 Kan. at 397-99, and Lora, 213 Kan. at 187-88, both of which involved failure to charge intended crime underlying aggravated burglary; problem cured by other information supplied to defense; convictions affirmed).
In particular, the court recognized the import of the States statutorily authorized ability to amend a deficient charging document, stating that amendment cases “have not presented insoluble jurisdictional problems. Jurisdiction does not descend on the proceedings at the moment the amendment is granted or . . . months or years later when [a] nunc pro tunc order is signed by the trial court after a ruling on appeal.” 246 Kan. at 759-60 (relying upon Rasch, 243 Kan. at 501, allowing journal entry memorializing earlier oral amendment to be filed pretrial; State v. Nunn, 244 Kan. 207, 224, 768 P.2d 268 [1989], extending Rasch holding to cover journal entry filed after trial; State v. Switzer, 244 Kan. 449, 456-57, 769 P.2d 645 [1989], allowing oral amendment to be validated by post-appeal nunc pro tunc order).
In short, according to the Hall court, at least some defects in charging documents could and should be addressed in district court. The court decided to fashion a prospective rule, one under which an appellate court would treat omission of an element of a crime from a charging document as fatal to subject matter jurisdiction only when it was brought to the attention of the presiding district judge before, during, or soon after trial. If, instead, the issue did not surface until the case was on direct appeal or later, the court would treat the error as something far less lethal to the State s case. See 246 Kan. at 747, 758.
“Common sense will be a better guide tlian arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal. [Citations omitted.]
“The proper procedure for a defendant who contends either that the information does not charge a crime or that the court was without jurisdiction of the crime charged is to utilize the statutory remedy extended by the legislature for these two specific situations — a K.S.A. 22-3502 motion for arrest of judgment. This remedy, available for 10 days after disposition at the trial court level, is of benefit to a defendant. It is preferable to raise either or both of these claims in the trial court rather than waiting to raise the issues for the first time on appeal. If the motion is denied by tire trial court, the denial may be appealed, if appropriate, to the Court of Appeals or to this court.” 246 Kan. at 754, 760.
Going forward from Hall’s decision date, those defendants who timely filed a motion for arrest of judgment or otherwise raised a defective complaint issue in the district court would have their defective charging document challenges reviewed on appeal under the “rationale of [the courts] -pre-Hall cases.” 246 Kan. at 764. Although not crystal clear, it appears from the opinion that such a standard would uphold a conviction under the charging document unless the document was “ ‘so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.’” 246 Kan. at 763 (quoting United States v. Watkins, 709 F.2d 475, 478 [7th Cir. 1983]). If, on the other hand, a defendant raised the challenge for the first time on appeal, the appellate court would
“look to whether the claimed defect in the information ha[d]: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in anyway defendants 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. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for tire first time on appeal, will be allowed.” 246 Kan. at 765.
It is this prospective rule attacked by Dunn in this case. He malees the dual and interconnected points that Hall did not explicitly overrule Minor or descendant cases holding that charging documents are jurisdictional instruments, and, if such holdings are still good law, Hall’s bifurcated review standard is illogical. Simply put, mere improvements in procedure and timeliness cannot cure a lack of indispensable-at-any-procedural-stage subject matter jurisdiction. See State v. Brown, 299 Kan. 1021, 1030, 327 P.3d 1002 (2014) (subject matter jurisdiction cannot be conferred by consent, waiver, estoppel); see also Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012) (subject matter jurisdiction cannot be conferred by failing to object or raise jurisdiction on appeal).
Although Dunn is persuasive on this point, this criticism of Hall does not end the matter. Our careful study of that decision and its background persuades us that our 1990 predecessors may have neglected to pinpoint Minor as the place where Kansas charging doc ument law took a wrong turn, but they had sound instincts. They may have said that there had been a “mistaken judicial blending of tire concepts of jurisdiction,’ ” 246 Kan. at 758, when what they really sensed was a “mistaken judicial blending” of the concepts of subject matter jurisdiction, constitutional and statutory charging document sufficiency, and adequate due process and notice protection for defendants; hut they deserve appreciation for their effort to tease apart these sources of concern and the need for distinct patterns of analysis. See State v. Parkhurst, 845 S.W.2d 31, 34-35 (Mo. 1992) (blending of concepts confuses issues to be determined).
Unfortunately, this court has since failed to seize upon the opportunity presented by a more nuanced reading of the Hall decision. Rather, we have routinely paid lip service to its weakest features — insistence on robotic recitation of essential statutory elements rather than allegations of fact that would support those elements in charging documents to deem them sufficient as well as rigid application of the procedural rule making some jurisdictional challenges more equal than others, see State v. Carr, 300 Kan. 1, 185, 331 P.3d 544 (2014), revel and remanded on other grounds 577 U.S._, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016); State v. Tapia, 295 Kan. 978, 986, 287 P.3d 879 (2012) (noting defendant did not question Hall decision) — while neglecting to fully appreciate or articulate its strongest feature. See State v. Inkelaar, 293 Kan. 414, 433-34, 264 P.3d 81 (2011) (complaint failing to include element fatally defective; trial court lacks jurisdiction to convict); State v. Gonzales, 289 Kan. 351, Syl. ¶ 8, 212 P.3d 215 (2009) (“Generally, if a complaint fails to include an essential element of a crime charged, it is fatally defective, and the district court lacks jurisdiction to convict the defendant of the alleged offense.”); State v. Scott, 286 Kan. 54, Syl. ¶ 2, 183 P.3d 801 (2008) (information omitting one or more essential elements of crime “fatally defective”; conviction on such information must be reversed); see also State v. Williams, 299 Kan. 509, 532, 324 P.3d 1078 (2014) (question of whether complaint “conferred” subject matter jurisdiction subject to unlimited review); State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2009) (discussing sufficiency of charging document “to confer jurisdiction”).
We also have perpetuated the Minor sufficiency and jurisdictional instrument rules in cases supposedly suitable for application of the more forgiving post-Hall review standard. See, e.g., State v. Brown, 299 Kan. 1021, Syl. ¶ 2, 1028-29, 327 P.3d 1002 (2014) (“complaint or information is the jurisdictional instrument in a criminal prosecution”; charging document would be sufficient to invest district court with jurisdiction “over a charged crime if it alleges all of the elements of the offense, if it sufficiently apprises the defendant of the facts against which he or she must defend, and if it is specific enough to safeguard the defendant against a subsequent prosecution for the same offense”; information charging felony murder, aggravated burglary drawn in language of statutes defining crimes, notifying defendant of what he was accused of doing adequate; no need to name victim of aggravated assault supporting aggravated burglary, which in turn supported felony murder).
In State v. Rome, 269 Kan. 47, 5 P.3d 515 (2000), the court considered a charging document supporting a plea to a Class A felony drug conviction for sale of cocaine, which was based on the defendant having two prior state court drug convictions. Years later, after the defendant successfully challenged one of the prior state court convictions and it was replaced with a federal court drag conviction, the defendant challenged the original complaint for failing to set out the two prior convictions as elements of the felony offense. The court recited that Hall had changed the “standards of appellate review for claims that a complaint or information was defective, when raised for the first time on appeal,” Rome, 269 Kan. at 52, but it did not articulate the standard to be applied to a post-Hall case. Rather, it reinforced the rule from the unnamed Minor both explicitly — “a complaint or information which omits an essential element of a crime is fatally defective for lack of jurisdiction” — and implicitly, holding that the Rome complaint passed muster because failure to include particulars of the defendant’s prior crimes in the complaint did not constitute omission of elements of the crime; thus the complaint was not “jurisdictionally defective.” Rome, 269 Kan. at 52; see also State v. Moody, 282 Kan. 181, 192-94, 197, 144 P.3d 612 (2006) (challenge to sentence as fourth-time driving under the influence offender on basis of complaint alleging defen dant had “two or more” prior offenses; court holds complaint ju-risdictionally sound; proof of prior conviction not element of DUI offense).
All of this being said, a few cracks in Minor’s and Hall’s armor have gradually begun to surface.
In Carmichael v. State, 255 Kan. 10, 19, 872 P.2d 240 (1994), we reversed a Court of Appeals panel opinion holding that jurisdiction was lacking on a complaint charging defendant Floyd Carmichael with rape rather than aggravated incest when the victim was Carmichael’s daughter. We held that the proper remedy was vacation of Carmichael’s sentences and remand to the district court for re-sentencing on the correct crime, rather than declaring the convictions void. See Carmichael, 255 Kan. at 19 (recognizing State v. Williams, 250 Kan. 730, 829 P.2d 892 [1992], implicitly overruled State v. Moore, 242 Kan. 1, 7, 748 P.2d 833 [1987]; Moore had allowed two convictions — one for rape, one for aggravated incest— based on same act). Indeed, the view that a failure to include an essential element in the charging document is a jurisdictional defect had quickly become the minority view in state and federal jurisdictions. See 5 LaFave, Israel, King & Kerr, Crim. Proc. §§ 19.2(e), 19.3(b) (4th ed. 2015); see also Ex parte Seymour, 946 So. 2d 536, 539 (Ala. 2006) (validity of indictment is irrelevant to whether trial court had jurisdiction over subject matter of case); Ortiz, 162 N.H. at 589 (defective indictment does not deprive trial court of power to adjudicate case); Parker v. State, 1996 OK CR 19, 917 P.2d 980, 985 (rejecting prior precedent that defective information failed to confer jurisdiction upon trial court; defects in information governed by Due Process Clause); State v. Gentry, 363 S.C. 93, 101-03, 610 S.E.2d 494 (2005) (noting modem jurisprudence separates concepts of subject matter jurisdiction of the trial court and the sufficiency of the indictment). But see Johnson, 219 W. Va. at 702 (because state rule of criminal procedure allows defendant to object to sufficiency of indictment based on failure to state an offense at any time during criminal proceeding, indictment jurisdictional).
Some of our post-Hall cases in Kansas also have recognized degrees of charging document inadequacy leading to different results. Allegations of certain elements of certain crimes have been regarded as expendable, when proof of the missing element was considered overwhelming. The flagship of this fleet is State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010). In that case, a jury convicted defendant Israel Reyna of four counts of aggravated indecent liberties with a child. Under Jessicas Law, when an offender is 18 years old or older and he or she commits aggravated indecent liberties with a child, the offense is an off-grid crime. On appeal, Reyna argued that the State had failed to allege or present evidence of his age at the time of the offenses. According to Reyna, the States failure to allege his age in the complaint deprived the district court of jurisdiction to subject him to off-grid sentencing and sentence him to life in prison. We ultimately rejected Reynas argument and held that “the failure to allege Reynas age in the complaint is not grounds to invalidate his convictions of the off-grid offense.” 290 Kan. at 678. We bolstered our conclusion with the facts that the charging document did include Reynas year of birth in its caption and did state at the bottom of the page that the charges were for off-grid crimes. 290 Kan. at 678; see also State v. Holman, 295 Kan. 116, 151, 284 P.3d 251 (2012) (charging document omitted defendants age; any deficiency did not invalidate defendants conviction or sentence); State v. Portillo, 294 Kan. 242, 252, 274 P.3d 640 (2012) (listing cases rejecting defendant’s argument of deficient charging document based on omission of defendants age); State v. Sellers, 292 Kan. 346, 362, 253 P.3d 20 (2011) (State excused from charging element of Jessicas Law defendants age when evidence in trial record leaves no doubt omission made no practical difference in verdict); State v. Colston, 290 Kan. 952, 973-76, 235 P.3d 1234 (2010) (citing Reyna; failure to instruct jury on defendants age as element of crime in Jessica’s Law case harmless when evidence of age overwhelming).
And, finally, as emphasized by defendant Dunn, in 2012’s Portillo, the unanimous court was openly critical of Hall’s procedural rule, which granted “retroactive validity” to charging documents and the prosecutions they launched, if the defendant failed to challenge sufficiency before appeal. Portillo, 294 Kan. at 255.
Today the cracks in Minors and Hall’s armor widen irreparably to fractures. We now recognize Minor’s declaration of Kansas’ ju risdictional instrument rule as an unjustified departure from Kansas constitutional and statutoiy provisions and from our prior case-law. We therefore overrule it. Charging documents do not bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases; the Kansas Constitution does. Charging documents need only show that a case has been filed in the correct court, e.g., the district court rather than municipal court; show that the court has territorial jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas crime committed by the defendant. This holding places us securely in the majority of modern courts, a fact that reinforces our conviction that today’s revised view of Kansas’ true law is sound.
Without Minors jurisdictional instrument rule as bedrock, we must also reject the rulings of Hall built upon it. There is now no reason for Hall’s differentiation between treatment of charging document errors and other types of errors. They are not jurisdictional flaws fatal to the State’s case when pointed out first to the district court and miraculously without significant effect when pointed out first to an appellate court. We return to these points and their implications more fully below.
Standard for Charging Document Sufficiency
The second topic on which we sought additional briefing and argument was the appropriate standard for charging document sufficiency. Having now rejected Minors jurisdictional instrument rule and Hall’s statements dependent upon it, we are compelled to consider Minor’s second striking overstatement when compared with the weight of prior law — its categorical declaration that a charging document must include all essential elements of the charged offense to avoid insufficiency. This too we overrule.
The plain language of K.S.A. 22-3201(b) is relatively clear: A charging document shall state “essential facts” constituting the crime charged, and the document “shall be deemed sufficient” if it is “drawn in the language of the statute.” The statute’s emphasis on “facts” rather than “elements” is repeated in other related statutes and legally significant. A Kansas charging document should be regarded as sufficient now, as it was before Minor, when it has alleged facts that would establish the defendants commission of a crime recognized in Kansas. See State v. Hazen, 160 Kan. 733, 736-39, 165 P.2d 234 (1946) (charging document sufficient despite failure to include affirmative allegation that defendant intended a specific person bodily injury); James, 157 Kan. at 400 (charging document sufficient despite erroneously alleging crime took place 6 months after defendants trial); Keester, 134 Kan. at 71 (charging document merely discloses jurisdiction; not necessary for charging document to state both counties in which crime took place). Because all crimes are statutorily defined, this is a statute-informed inquiry. The legislature s definition of the crime charged must be compared to the States factual allegations of the defendants intention and action. If those factual allegations, proved beyond a reasonable doubt, would justify a verdict of guilty, then the charging document is statutorily sufficient. If the charging document is instead statutorily insufficient, then the State has failed to properly invoke the subject matter jurisdiction of the court, and an appropriate remedy must be fashioned. The problem is not a substantive absence of jurisdiction; it is a procedural failure to demonstrate its existence. The availability of a remedy is key. Statutory infirmity does not inevitably fail to bestow subject matter jurisdiction or deprive the court of jurisdiction or destroy jurisdiction. See K.S.A. 22-3502 (arrest of judgment available if charging document does not charge crime or court without jurisdiction).
This rule hearkens back to State v. Morris, 124 Kan. 505, 260 P. 629 (1927), in which the court congratulated itself on its modern approach. It said:
“A good form book is a valuable adjunct to the office equipment of a prosecuting attorney, and he would do well to consult it before drawing an information in an important criminal case; but the day is past in this jurisdiction, we trust, when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.” Morris, 124 Kan. at 508.
The Morris court relied upon the fact that the defendants fully understood they were on trial for the fraudulent making of a check to the prejudice of the rightful owner of the check, of tire bank on which the check was drawn, and of the filling station owner expect ing to be paid by means of the check. See Morris, 124 Kan. at 508. In other words, there was no constitutional problem arising from tire charging document’s omission of an element of the crime.
The Reyna line of Jessicas Law cases challenging, for the first time on appeal, a charging document’s omission of the defendants age of 18 or over at the time of the crime provides a contemporary illustration of how todays rule should relieve analytical tension arising from Minor and Hall. See Reyna, 290 Kan. at 677-78; see also State v. Holman, 295 Kan. 116, 151, 284 P.3d 116 (2012). We have recognized in such cases that the charging document did not include an allegation of the defendant’s age, an element of the crime, but ultimately ruled that the omission did not prejudice the defendant’s rights as long as the evidence presented to the fact-finder on that subject was overwhelming or undisputed. See, e.g., Sellers, 292 Kan. at 362. Under the rule we announce today, assuming a defendant succeeds in persuading us to reach the merits of the claim despite a lack of preservation in the district court, we would be more likely to hold that there is no charging document sufficiency problem in the first place. A complaint, indictment, or information that names a defendant or otherwise identifies him or her inherently includes his or her age on the date of the alleged offense. No question of adequate notice to the defendant of his or her own age on the given date is logically possible, and the charging document will have served its purpose of providing notice and a fair opportunity to defend. In other words, there would be no error and we would not reach the prejudice or harmlessness question.
We now turn to the third topic on which we sought additional briefing and argument from the parties.
The Role of Constitutional Due Process and Notice Provisions
Our discussion thus far has established that the Kansas Constitution dictates the existence of subject matter jurisdiction as long as the charging document shows that the case has been brought in the correct court in the proper county. In addition, we look to Kansas statutes to determine whether the charging document includes facts that would constitute a crime under Kansas law; it must do so to be statutorily sufficient.
The third topic on which we sought additional guidance from the parties had to do with any additional or distinct role that federal or state constitutional due process and notice principles play in determining charging document sufficiency.
Every criminal defendant has a right under the Fifth and Fourteenth Amendments to due process before he or she can be deprived of life, liberty, or property. In addition, we have long recognized that a criminal defendant has a right under the Sixth Amendment to notice of the charge or charges pursued by the State. See, e.g., State v. Loudermilk, 221 Kan. 157, 158-59, 557 P.2d 1229 (1976); see also State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988) (one goal of adequate charging document to inform defendant of alleged offense, in part to enable double jeopardy claim). And Section 10 of the Kansas Constitution Bill of Rights contains its own requirement that a criminal defendant be informed of the charges against him or her. Depending on the form a defendants challenge to a charging document takes, these constitutional provisions may apply and may require relief from a conviction or sentence because the document led to prejudicial due process or notice error. See State v. Wade, 284 Kan. 527, 537, 161 P.3d 704 (2007) (instruction on elements of aggravated burglary erroneous because it added ulterior felony on which defendant had no notice before evidentiary portion of trial concluded; error prejudiced defendant, required reversal of conviction). But even prejudicial deficiencies in due process or notice do not render the outcome of a prosecution void for lack of subject matter jurisdiction.
One illustrative case is State v. Seeger, 65 Kan. 711, 711, 70 P. 599 (1902). In that case, the defendants were convicted of keeping a nuisance after being charged with maintaining
“ ‘a place where intoxicating liquors are kept for sale, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for the puipose of sale, barter or delivery in violation of law, or a place where intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property are kept and used in maintaining such place.’ ”
This court ruled that the district judge erred by refusing to quash the complaint because, although it was drawn in the language of the statute, its repeated use of the disjunctive “or” failed to inform the defendants of the nature of the offense. “The defendant is entitled to be informed just what is charged against him, and a complaint that he did one thing, or another, or still another, lacks certainty.” Seeger, 65 Kan. at 712; see also State v. Kamen, 166 Kan. 664, 666, 203 P.2d 176 (1949) (notice requirement established law in this jurisdiction). The case was reversed and remanded for further proceedings in district court. It was not dismissed outright. Seeger, 65 Kan. at 712.
With the completion of this section’s discussion, we have identified three possible types of charging document insufficiency a criminal defendant may challenge. First, either a district or appellate court may be asked to decide whether the document shows that the Kansas constitutional minimums of correct court and correct territory are met. Second, a court may be asked to evaluate whether the document alleges facts about the intent and action on the part of the defendant that, if proved beyond a reasonable doubt, would constitute violation of a Kansas criminal statute. And, third, a court may be asked to determine whether the charging document meets federal and state constitutional standards for due process and notice, such that the defendant has an opportunity to meet and answer the State s evidence and prevent double jeopardy. These types of charging document error may be raised at various points in a prosecution, and attendant circumstances may dictate various forms of relief. We discuss procedure and remedy in the next section.
Procedure and Remedy
Our questions about procedure and remedy for defective charging documents formed the foundation of the fifth topic on which we sought further input from the parties. Of the possible sources of charging document insufficiency identified today — failure to show the case is brought in the right court in the right territory, as the Kansas Constitution requires; failure to state facts that would constitute a crime under a Kansas statute; failure to ensure observance of the defendants federal and state constitutional rights to due process and notice of the charges — none of these pleading defects pre vents or destroys the existence of subject matter jurisdiction over criminal cases in our district and appellate courts. Rather, the first qualifies as state constitutional error, the second as statutory error, and the third as federal and state constitutional error.
Now that a defective complaint will no longer be regarded as a telltale marker for the absence of subject matter jurisdiction, the question of appropriate remedy has become more complicated. Rs answer, at a minimum, will depend on the nature of the defect alleged by the defendant and the timing of and circumstances surrounding the courts awareness of it. Although we cannot foresee every situation that may arise in a future case, a few general observations can be made today.
As long as an error of the first type is merely a failure to recite or a mistake in recitation and not the actuality of a fifing in the wrong court or wrong territory, which does implicate subject matter jurisdiction, see City of Junction City v. Cadoret, 263 Kan. 164, Syl. ¶ 5, 946 P.2d 1356 (1997) (municipalities do not have jurisdiction over crimes designated a felony by state statute), tiren it is most likely to be amenable to remedy or cure by amendment before verdict under K.S.A. 22-3201(e). An amendment to fill in the omission or to correct a fact obvious to both sides will neither charge a new crime nor impair defendant’s “substantial rights,” including federal and state constitutional rights to due process and notice. Given tire nonprejudicial nature of such an error, we also expect that it would not support a successful motion to arrest judgment after trial nor reversal on appeal.
The second type of error, failure to state facts constituting a Kansas crime — although under Kansas law, a statutory rather than a constitutional problem — has the potential for more serious ramifications if not corrected as early as possible in the prosecution. As mentioned in a previous section of this opinion, although the courts constitutionally endowed subject matter jurisdiction is neither prevented nor destroyed by this error, a charging document’s failure to describe a Kansas crime impairs invocation of that jurisdiction and carries the risk that due process and notice for the defendant are similarly infirm. The longer the error is able to fester uncorrected, the greater the potential harm to the defendant’s rights and the higher the likelihood a motion for bill of particulars under K.S.A. 22-3201(f) or a K.S.A. 22-3201(e) amendment will be unworkable and the district judge will need to order a mistrial or arrest of judgment or the appellate court a reversal and remand in response to the defendant s complaint. If the State is forced to concede on appeal, as it was at final oral argument in this case, that the language of its charging document failed to state facts constituting a Kansas crime, it will be limited to arguing lack of preservation of the issue, which is discussed in the next section, or harmlessness under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105.
The third type of error, a charging document sufficiency problem based on federal or state constitutional due process or notice provisions, like the second type of error, becomes more difficult to remedy the longer it goes unaddressed. A failure to cure the problem early will circumscribe tire visible universe of solutions. See Wade, 284 Kan. at 537. Certainly, if the defendants challenge grows out of the Fifth and Fourteenth or tire Sixth Amendments, the court will be guided by the test for harmlessness applicable to federal constitutional error. See Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). This standard can pose a significant burden to the State. See State v. Bolze-Sann, 302 Kan. 198, 216, 352 P.3d 511 (2015). We assume without deciding today that a similarly stringent test will also be applied to evaluate the prejudicial effect of a charging document error implicating state constitutional due process or notice rights.
Issue Preservation for Appeal and Standard of Review
The last topic on which we sought additional briefing and argument from the parties dealt with preservation of issues for appeal and the applicable standard of review.
We address preservation first.
Ordinarily a party that wants to pursue an issue on appeal must have preserved that issue in the court below. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). But preservation is a prudential consideration, not an invariable rule. See State v. Beaman, 295 Kan. 853, 857, 286 P.3d 876 (2012).
In the case of challenges to alleged defects in institution of crim inal proceedings, as with evidentiary rulings under K.S.A. 60-404, the legislature has provided specific guidance on implied waiver of arguments by the defense. We thus begin our discussion with that guidance.
K.S.A. 22-3208(3) forbids “[djefenses and objections based on defects in the institution” of a prosecution or in the charging document “other than that it fails to show jurisdiction in the court or to charge a crime” to be raised other than by pretrial motion. Failure to follow this provision constitutes waiver, “but the court for cause shown may grant relief from the waiver.” K.S.A. 22-3208(3). The next subsection of the statute also makes a plea of guilty or a consent to trial on a charging document a waiver “of defenses and objections based upon the institution” of a prosecution or defects in the charging document “other than it fails to show jurisdiction in the court or to charge a crime.” K.S.A. 22-3208(4).
In short, the legislature has expressly excepted the first two types of charging document insufficiency addressed in this opinion from its implied waiver rule. If a charging document fails to show jurisdiction (as required by the Kansas Constitution) or fails to state a Kansas crime under the statutes the legislature has used to define them, those defects need not be raised in pretrial motion. The third type of charging document error discussed in this opinion, because it involves federal and state constitutional rights to due process and notice, may also escape the implied waiver rule because the rule is subject to suspension by a judge for “cause shown.” K.S.A. 22-3208(3). If a defendant can demonstrate that a charging document was so bare bones that he or she was unable to appreciate an infringement of due process or notice rights until evidence began to come in at trial or later, then it is not hard to imagine that a judge of the district court or a majority of judges on an appeals panel will excuse a late challenge to a charging document for “cause shown.” We therefore do not regard the statute as much of an impediment to a defendant seeking to raise a charging document challenge for the first time on appeal.
That being said, now that we have established that such challenges do not implicate subject matter jurisdiction, we also see no reason that they must be treated especially favorably when it comes to preservation. Our usual rules apply to charging document challenges by criminal defendants. They should be raised in the district court in the first instance. If they are not, defendants will be tasked with demonstrating on appeal that an exception to the usual preservation rule should be applied. See Godfrey, 301 Kan. at 1043 (three recognized exceptions: [1] newly asserted claim involves only question of law arising on proved or admitted facts, determinative of case; [2] consideration of claim necessary to serve ends of justice, prevent denial of fundamental rights; [3] district court right for wrong reason).
Turning to the applicable appellate standard of review, it is no doubt evident to any experienced appellate advocate from all that we have said so far in this opinion that the standard for evaluating assertions of charging document error in future cases will be de novo. The sources of law governing the three types of charging document challenges we have addressed are the Kansas Constitution, statutory definitions of Kansas crimes, and federal and state constitutional provisions. We apply a de novo standard to both constitutional and statutory interpretation. See In re Care & Treatment of Miller, 289 Kan. 218, 230, 210 P.3d 625 (2009). We also apply de novo review to written instruments; and charging documents are writings. See State v. Tims, 302 Kan. 536, 546, 355 P.3d 660 (2015).
Application of Today’s Ruling to Dunn
Dunn has advanced two challenges to Count 8 for forgery in Case 09 CR 333. His “main horse,” as his counsel described it in oral argument, is that the count failed to include essential elements of the Kansas crime of forgery and thus the district court lacked subject matter jurisdiction to convict him. His fallback argument has been that Count 8 failed to' provide him adequate due process and notice to enable his defense. '
There is no dispute that Dunn did not preserve the defective complaint issue by raising it in the district court. It is this lack of preservation that led Dunn to challenge Hall’s rule that he would be held to a more difficult appellate standard of review on what he and Hall still regarded as an issue of subject matter jurisdiction. We have now broken this nonsensical link. A charging document’s failure to include an element of a crime under the defining Kansas statute does not deprive the court of subject matter jurisdiction to convict; it does not even necessarily meet the statute-defined threshold for failure to charge a crime because the facts alleged, rather than the legal elements regurgitated, determine whether the charge is sufficient under the statute defining the crime.
The particular subsection of the forgery statute intended to support Count 8 apparently is K.S.A. 21-3710(a)(2). It provides: “Forgery is knowingly and with intent to defraud . . . issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed.” The “such written instrument” and “thus made” language in subsection (2) evidently refer back to subsection (1) of the statute which defines forgery as:
“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 tire 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 tire authority of one who did not give such authority.” K.S.A. 21-3710(a)(1).
To say that this language from the forgery statute is not a model of clarity is an obvious understatement. But, even with the difficulty of following it acknowledged, the language from Count 8 still goes it one better on the gibberish meter. That language, again, for ease of reader reference, stated:
“That on or about the 27th day of July, 2009, in Labette County, Kansas, Jerold M. Dunn, tiren and there being present did unlawfully, feloniously and knowingly issue[] or deliver!] a check (#1050) which he/she knew had been made, altered or endorsed so that it appeared to have been made, in violation of K.S.A. 21-3710 and against tire peace and dignity of the State of Kansas. (Forgery-Passing) Severity level 8 Non-person Felony, (7-23 months).”
At a minimum, this count fails to allege the fact that Dunn intended to defraud Shaw or the Smoke Shop when he passed check #1050, and the State made no effort to augment the language of Count 8 by incorporating by reference Count 4, which dealt with the same check. K.S.A. 22-3201(b) explicitly permitted such incorporation, and the Court of Appeals erred when it treated the de fective Count 8 as though the State had taken that simple step to preserve the viability of its prosecution. Compounding that error perhaps is the fact that Dunn was never bound over on Count 4.
Under these circumstances, we hold that the State failed to charge forgeiy in Count 8, a statutory error subject to a harmlessness inquiry under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105. Under those statutes, we examine whether the defect affected Dunn's substantial rights.
We conclude that Dunn’s substantial rights were not affected by the charging document error because he and his trial counsel clearly understood exactly what the State sought to prove on Count 8. Indeed, his defense was that he was authorized by Shaw to use check #1050 for his purchases and that he did not intend to defraud her or the Smoke Shop in the transaction. The jury did not accept his version of events, but that does not mean we are confronted with reversible error.
Dunn's backup argument — that he also was deprived of constitutionally guaranteed due process and notice by the defective Count 8 — also fails to compel reversal of his conviction. Even if we were to hold that Count 8 also was so poorly drafted that it failed to provide Dunn with enough information to defend, it is plain that he and his lawyer had the necessaiy information in spite of the defect. He is not entitled to reversal under the federal constitutional harmlessness standard of Chapman, 386 U.S. at 24, which applies to federal due process and notice claims. To the extent Dunn relies on the Kansas Constitution for his due process and notice claims, we also can safely say any alleged error was harmless.
Sufficiency of Evidence to Support Stalking Conviction
The appellate standard of review on sufficiency of evidence is often stated and well known:
"When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012); see State v. Frye, 294 Kan. 364, 374, 277 P.3d 1091 (2012) (‘[Cjonvictions arising from bench trials and those arising from jury trials are reviewed by this court utilizing the same standards on appeal.’). In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or malee determinations regarding witness credibility. Stafford, 296 Kan. at 53.” State v. Kendall, 300 Kan. 515, 523, 331 P.3d 763 (2014).
Under K.S.A. 2008 Supp. 21-3438(a)(3), the State was required to prove that Dunn intentionally or recklessly violated a protection from abuse order during his encounter with Shaw at the bank, that his conduct “would cause a reasonable person to fear for such person’s safety,... and [that] the targeted person [was] actually placed in such fear.”
Dunn argues that there was no evidence Shaw had any particularized fear for her safety. He also contends that there was no evidence to support a conclusion that a reasonable person would fear for his or her safety based on Dunns actions.
This challenge has no merit.
The evidence in this case included testimony about Dunns appearance at the bank shortly before Shaw made what was a routine work stop there. The bank teller described Shaw, after seeing Dunn, as “real nervous and afraid, scared, upset.” The teller also heard Shaw describe Dunn’s appearance at the bank as “harassment.” Additional evidence showed that Dunn approached Shaw as she left the bank and, with a “real mad” look, “got right into her face.” He positioned himself between Shaw’s car and its door, which prevented her from leaving. The teller heard Shaw tell Dunn to leave her alone and further testified that she was concerned for Shaw’s safety. Shaw testified that she was afraid on the day of her confrontation with Dunn at the bank.
Dunn argues that all of this evidence must be viewed in light of the fact that Dunn and Shaw later reconciled. According to him, the reconciliation presents “real questions about whether [Shaw] had any genuine fear of [Dunn].”
Our first observation is that, as a matter of logic and legal import, a later reconciliation does not magically remake a couple’s violent or threatening history. Moreover, Dunn’s challenge essentially asks this court to make a credibility redetermination, something an appellate court does not do. State v. Sitlington, 291 Kan. 458, Syl. ¶ 7, 241 P.3d 1003 (2010) (“The determination of credibility of the victim is solely within the province of the factfinder, and the factfinders determination is not to be set aside unless the witness’ testimony is so incredible and improbable as to defy belief.”).
Conclusion
For all of the reasons stated above, we affirm the forgeiy and stalking convictions of defendant Jerold Michael Dunn. Although the State’s Count 8 was deficient, the error was not reversible; and defendant’s challenge to the sufficiency of the evidence supporting his stalking conviction is without merit.
The judgment of the district court is affirmed. The decision of the Court of Appeals is affirmed, although for reasons other than those cited by the panel on the forgery count.
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The opinion of the court was delivered by
LuCKERT, J.:
In this wrongful death action, an heir sues an alleged tortfeasor for the death of a decedent. But this case is not the typical suit brought pursuant to the Kansas Wrongful Death Act, K.S.A. 60-1901 et seq., due to a few unusual iterations: Here a bereaved father sues his wife, the bereaved mother; the two parties are the sole heirs at law of a decedent child; and, to add one more wrinlde, both parties are potential tortfeasors.
On appeal and cross-appeal, both parties raise several issues, which we group and address in the following order. First, the mother contends the father is not legally entitled to bring a wrongful death action against her because the suit is brought on behalf of all the decedent’s heirs at law, including the mother, and she cannot be permitted to benefit from her own negligence. Second, she contends she was entitled to either pretrial summary judgment or midtrial judgment as a matter of law on tire issue of negligence because there was a lack of evidence supporting her liability. Third, die father argues the district court erred in allowing the jury to compare his negligence, as a mere passenger in a car, to that of the mother, who was the driver of the car at the time it crashed and their son was killed. In four final issues, the mother argues the district court erred in not giving juiy instructions on common enterprise, in allowing questions about unsigned interrogatory answers during witness examination at trial, in ruling that K.S.A. 2014 Supp. 8-1345(d) (precluding evidence that a child was not properly secured in a safety restraint system) is not unconstitutional as applied to this case, and by not allowing her to raise the common-law defenses of parental and interspousal immunity.
The Court of Appeals panel unanimously affirmed the district court’s rulings denying the pretrial motion for summary judgment and the midtrial motion for judgment as a matter of law. A majority of the panel also affirmed the district court on the jury instruction issues presented by the father and concluded all of the mother’s issues were moot because of the jury’s determination that the mother and father were equally at fault, which effectively resulted in judgment in her favor. Siruta v. Siruta, No. 105,698, 2013 WL 451890, at “3-6 (Kan. App. 2013) (unpublished opinion). One member of the panel dissented, concluding it was error to compare the fault of the father because, as a passenger, the father owed no duty to his son unless the mother’s negligence was imputed to him under the joint enterprise doctrine—an option the jury had not been allowed to consider. 2013 WL 451890, at *6-8 (Hill, J., dissenting).
Upon our review of the Court of Appeals decision, we agree with the unanimous panel rulings that the mother was not entitled to summary judgment or judgment as a matter of law. But we reject the majority’s holding that it was appropriate to issue instructions allowing die jury to compare the father’s fault based on duties he owed to protect himself—rather than his son—from injury. We hold that this error undoubtedly affected the jury’s verdict, and we, therefore, reverse the district court and the Court of Appeals and remand diis case for further proceedings. We address the remaining issues only to the extent of providing guidance on remand.
Factual and Procedural Background
We will not belabor tire tragic facts, which are more fully explained in the Court of Appeals opinion in this case. See generally Siruta, 2013 WL 451890, at *1-2. Tate Dillon Siruta, a 7-year-old child, was killed in a one-car rollover crash just after midnight as his family neared the end of a long trip across Kansas following a wrestling tournament in which Tate had participated. Tate’s parents had periodically traded driving duties during the approximately 330 miles the family had traveled. At the time of the crash, Tate’s mother, Melissa (Missy) Siruta, was driving, Tate and a friend were asleep in the back seat, and Tate’s father, Duskin Si-ruta, was asleep in the front passenger seat. Due to his small size, Tate slipped under the shoulder restraint and out of the seatbelt during the rollover and was pinned when the passenger door opened. After Tate’s death, Duskin brought a wrongful death action against Missy and alleged that Missy’s negligence was the proximate cause of Tate’s death. Missy and Duskin filed competing motions for summary judgment, both of which the district court denied, and the case proceeded to a jury trial.
At trial, the parties disputed whether Missy fell asleep behind the wheel or was otherwise negligent in causing the accident. Missy had argued in her pleadings and pretrial filings that the accident occurred without any party being negligent, or in the alternative if she was negligent, Duskin was also negligent as a result of their joint driving decisions. But at trial, as noted by the Court of Appeals, the parties’ positions on whether negligence should be found was “not entirely adversarial,” as Duskin and Missy remained married, and Missy went so far as to say that she did not want the jury to determine no fault and not award damages. 2013 WL 451890, at *3. At the close of Dusldn’s evidence, Missy moved for judgment as a matter of law (known at the time as a directed verdict), which the district court denied.
The jury found both parties 50% at fault, which, under Kansas comparative negligence law, resulted in a judgment in favor of Missy. See K.S.A. 2014 Supp. 60-258a(a); PIK Civ. 4th 105.01. Duskin appealed on the grounds of erroneous jury instructions, and Missy cross-appealed on different jury instruction grounds and raised several other issues.
The Court of Appeals reached Dusldn’s jury instruction issues and, finding that the instructions were not issued in error, affirmed the jury verdict. 2013 WL 451890, at *3-6. We granted Dusldn’s petition for review and Missy’s cross-petition for review under K.S.A. 203018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
We will first address Missy’s arguments regarding the district court’s denial of her motions for summary judgment and for judgment as a matter of law, then turn to Dusldn’s arguments regarding the jury instructions, and, finally, address Missy’s remaining arguments.
Analysis
Issue 1: Action Not Barred Because Missy Is Both a Potential Tortfeasor and Heir at Law
We begin with whether Duskin may bring this suit at all. Missy contends that he may not and that the district court erred in denying her motion for summary judgment on the basis of this argument.
We review the district court’s denial of summary judgment de novo, viewing the facts in the light most favorable to the party opposing summary judgment. See, e.g., Long v. Turk, 265 Kan. 855, 865, 962 P.2d 1093 (1998). “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002); see K.S.A. 60-256(c)(2).
In Missy’s summary judgment motion, she argued various provisions in the wrongful death act prohibited Dusldn’s wrongful death action. Sorting out her arguments requires us to resolve issues of law and construe the act. This court applies de novo review and does not grant deference to the district court’s legal conclusions and statutory interpretation. Martin v. Naik, 297 Kan. 241, 247, 300 P.3d 625 (2013); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).
K.S.A. 60-1901 provides tliat “[i]f the death of a person is caused by tire wrongful act or omission of another, an action may be maintained for tire damages resulting therefrom if the former might have maintained the action had such person lived.” If the decedent could have maintained the wrongful death action, the action may be filed “by any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” K.S.A. 60-1902; see K.S.A. 60-1904 (listing recoverable damages including, inter alia, mental anguish, suffering or bereavement, and reasonable funeral expenses). K.S.A. 60-1902 also provides that a wrongful deatíi action “shall be for tire exclusive benefit of all of the heirs who [have] sustained a loss regardless of whether they all join or intervene” in the suit. Each of tire heirs, including those who did not join in the wrongful death action, may receive an apportionment of the recovery “in proportion to the loss sustained by each of the heirs.” K.S.A. 60-1905.
Here, it is undisputed that Tate might have maintained the suit had he lived, and so there is no initial difficulty under K.S.A. 60-1901. There is also no real dispute that Duskin is a proper plaintiff under K.S.A. 60-1902 because he is one of Tate’s heirs at law and he sustained a loss by reason of Tate’s death.
Missy argues that the district court should have nevertheless barred Dusldn’s suit. Missy’s first point is that she was entitled to summary judgment on Duskin’s claim because she is also one of Tate’s heirs at law, meaning she is both plaintiff and defendant in this action. But nothing in the wrongful death statute requires us to treat Missy as a “plaintiff’ in this case solely because she is an heir at law. See K.S.A. 60-1901 et seq. In fact, K.S.A. 60-1902 expressly contemplates that some heirs may elect to join a wrongful death action as party-plaintiffs and others may elect not to; Kansas does not require that all heirs join a wrongful death action as necessary or indispensable parties. See K.S.A. 60-219 (regarding compulsory joinder of parties). Thus, while a wrongful death action is “for the exclusive benefit of all of tire heirs who [have] sustained a loss,” it does not necessarily follow that all the heirs are “plaintiffs” during a civil litigation of fault. K.S.A. 60-1902.
Further, the statutory provisions regarding apportionment of the ultimate award malee clear that the “exclusive benefit” language pertains to apportionment of damages. Apportionment must occur after the substance of the action has been litigated and damages have been awarded to the named plaintiff(s). See K.S.A. 60-1902; K.S.A. 60-1905. To hold otherwise would render meaningless the language in K.S.A. 60-1902 that the action is for the benefit of the heirs “regardless [of] whether they all join or intervene” in the action. K.S.A. 60-1902; see Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005) (referencing “the presumption that the legislature does not intend to enact useless or meaningless legislation” and the courts’ “obligation to interpret a statute in such a way that part of it does not become surplusage”).
Accordingly, we decline to view Missy as a “plaintiff’ in the instant action such that she would necessarily recover damages from herself as the defendant. We do not address what would have happened had Missy sought to join Dusldn’s action outright as a party plaintiff or had otherwise sought to intervene, as those circumstances are not before us. See K.S.A. 60-1902 (permitting heirs who do not join as a party-plaintiff to intervene).
Missy’s second and stronger point is that if Dusldn were to succeed and win damages on his own behalf, she would, as an heir, share in Dusldn’s award, which would impermissibly enable her to profit by her own negligence. See, e.g., Turner v. Railway Co., 106 Kan. 591, 599, 189 Pac. 376 (1920) (“[0]ne party cannot hold the other responsible for an injury which his own carelessness has alone, or with the other’s caused.”). We ultimately reject this argument for two reasons.
First, we are not convinced that die potential for Missy’s recovery should prohibit Dusldn’s suit. A wrongful death action is purely a statutory creation, and the statutory language does not disallow recovery by an heir who has negligently contributed to the death of the decedent. See K.S.A. 60-1901 et seq.; Bonura v. Sifers, 39 Kan. App. 2d 617, 621, 181 P.3d 1277 (2008) (describing the wrongful death action as a statutory construct). The statute also clearly contemplates that heirs must first assert an interest in the apportionment proceedings before they can receive a portion of the damages recovered by the plaintiff, which further supports our conclusion that the specter of Missy’s future recovery should not bar Dusldn’s suit. See K.S.A. 60-1905. Even if the legislature did not anticipate this scenario at the time it enacted tire wrongful death statute, we are still bound by the statutory language as written. See Johnson v. McArthur, 226 Kan. 128, 129-32, 135, 596 P.2d 148 (1979) (explaining that K.S.A. 60-1901 et seq. is plain and unambiguous, and in such cases courts “must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be”).
Second, we are not convinced that the situation Missy describes—where she recovers damages from her own negligence— is the inescapable result of Duskin’s suit were he successful. K.S.A. 60-1905 leaves the apportionment decision to the judge, and nothing in the statutory language prohibits the judge from using discretion in calculating the relative “loss” sustained by each of the heirs,' especially considering that most of the contemplated “losses” cannot be precisely determined, such as mental anguish and loss of society. See K.S.A. 60-1902; K.S.A. 60-1904; K.S.A. 60-1905; see also Johnson, 226 Kan. at 131-32 (explaining that distribution of damages is in proportion to the loss of each heir, rather than by use of an intestacy formula); cf. Cruse v. Dole, 155 Kan. 292, 297, 124 P.2d 470 (1942) (explaining that in a wrongful death case brought under an earlier version of the statute using the intestacy formula, where an heir is guilty of contributory negligence, that heir “may not recover and any amount he would otherwise have received is deductible from the amount recoverable by the survivors as a group, the rest being distributed among the survivors as though the [negligent heir] did not exist”). There is nothing preventing a judge from considering any of Missy’s actions in causing her own loss or from fashioning an award tailored in some other way to the peculiar facts of this case and the losses sustained by the heirs at law. See Johnson, 226 Kan. at 135 (explaining that one of five children, all of whom were a decedent’s heirs at law, could receive 100% of the net recovery “if he or she suffered all of the loss”)- Accordingly, we do not believe that Missy would necessarily receive, merely because of her status as an heir at law, any portion of the damages she was ordered to pay as a defendant.
Missy’s arguments to the contrary are not persuasive, as she primarily relies on cases predating Kansas’ shift from contributory negligence to comparative negligence. See, e.g., Schmidt v. Martin, 212 Kan. 373, 510 P.2d 1244 (1973); Turner, 106 Kan. 591; Schaefer v. Interurban Railway Co., 104 Kan. 394, 179 P. 323 (1919). These cases, and Schmidt in particular, recount the rule that “where the death of a minor child results from the contributory negligence of a parent and that of a third person,” and where potential recoverable damages “are solely for the benefit of the parent who negligently contributed to the child’s death,” that parent’s “contributory negligence . . . bars him from recovering from the third person on account of the child’s death.” Schmidt, 212 Kan. at 374-75. We do not decide today whether this rule has any lingering power in light of Kansas’ current comparative, negligence framework because these cases are distinguishable from Missy’s case. For example, here, in addition to there being no question of legal contributory negligence, any recoverable benefits would not be “solely” for the benefit of Missy; Duskin brought the suit and he seeks damages only for himself, Missy is not a party-plaintiff, she is not the only heir at law, and she would have to affirmatively assert her interest in the apportionment of any damages Duskin received.
We affirm the district court’s denial of summary judgment on this ground.
Issue 2: Question of Missy’s Negligence Is for the Jury
Missy also argues that the district court erred in denying her motion for summary judgment and her mption for judgment as a matter of law on the basis that there was not sufficient evidence of her negligence for the case to go to the jury.
2.1 Standard of review and general principles regarding proof of negligence
As we explained above, we review the district court’s denial of a motion for summary judgment de novo, viewing the facts in the light most favorable to the party opposing summary judgment. K.S.A. 2014 Supp. 60-256(c)(2); Long, 265 Kan. at 865. If “reasonable minds could differ as to the conclusions drawn from the evidence”—in other words, if there is a genuine issue about a material fact—summaiy judgment should be denied. Bracken, 272 Kan. at 1275. We also review de novo the district court’s denial of a motion for a directed verdict (now called a motion for judgment as a matter of law), asking whether evidence existed from which a reasonable jury “could properly find a verdict for the nonmoving party.” Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007) (also explaining that the standard of review for a motion for judgment as a matter of law is the same as the standard previously employed for review of a motion for a directed verdict). Similar to our review of denial of summary judgment, when considering a motion for judgment as a matter of law we “ ‘ “resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought,” ’ ” and, “[wjhere reasonable minds could reach different conclusions based on the evidence, tire motion must be denied.” ’ [Citations omitted.]” Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008); see K.S.A. 2014 Supp. 60-250.
Here, we apply these standards to determine whether Dusldn presented evidence raising an issue of fact on which reasonable minds could differ. A prima facie case for negligence in a wrongful death negligence action required Dusldn to show that Missy owed Tate a duty, she breached that duty, and her breach proximately caused the complained-of injury. See Yount v. Deibert, 282 Kan. 619, 623-24, 147 P.3d 1065 (2006). “Whether a duty exists is a question of law.” 282 Kan. at 624. Generally, as a matter of law, an automobile driver owes the duty to act as would a reasonably prudent driver. See Deal, 286 Kan. at 859. The determination of what a reasonably prudent driver would do under particular cir cumstances, whetlier a driver acted in a manner consistent with that standard, and “[w]hether there is a causal connection between the breached, duty and the injuries sustained [are] question] of fact.” Yount, 282 Kan. at 624; see Deal, 286 Kan. at 858.
“In the vast majority of cases, the question of negligence is a factual determination for the jury, not a legal question for the court.” Deal, 286 Kan. at 859 (discussing motions for judgment as a matter of law); see, e.g., Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998) (summary judgment is to be granted “with caution” in negligence cases). Whether a party breached a duty and was negligent can become a legal question, however, “ when the facts are such that reasonable men must draw the same conclusion from them’ ” or when “no evidence is presented on a particular issue.” Deal, 286 Kan. at 858-59; see also Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007) (stating a defendant is entitled to summary judgment if the plaintiff s claim “ ‘is supported by no evidence indicating negligence’ ”); Yount, 282 Kan. at 623 (explaining that “[sjummaryjudgment is proper in a negligence action if the only questions presented are questions of law”).
“Negligence must be proved by substantial competent evidence.” Yount, 282 Kan. at 624 (also asserting that Kansas “does not presume negligence” or allow it to be established “by conjecture, surmise, or speculation”). It is well established that negligence may be proved through circumstantial evidence, however. See, e.g., 282 Kan. at 625; Hurlbut v. Conoco, Inc., 253 Kan. 515, 524, 856 P.2d 1313 (1993). In order for circumstantial evidence to be sufficient to establish negligence, “ ‘such evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion’ ”—instead, “ ‘[i]t suffices that such evidence affords a basis for a reasonable inference by the court or jury,’ ” even though “ ‘some other inference equally reasonable might be drawn [from the evidence].’ [Citation omitted.]” Kuxhausen v. Tillman Partners, 291 Kan. 314, 320, 241 P.3d 75 (2010); see also Casey v. Phillips Pipeline Co., 199 Kan. 538, Syl. ¶ 6, 431 P.2d 518 (1967). Triers of fact may also “draw upon their own experiences in determining causation.” Yount, 282 Kan. at 625.
2.2 Questions of fact were presented for jury determination
Here, Missy admits that she had a duty to conform to the standard of a reasonably prudent driver. See Yount, 282 Kan. at 624 (describing this question as one of law). She argues, however, that she was entitled to summary judgment or judgment as a matter of law because reasonable minds could not differ as to whether she breached her duty of care. She further asserts that, as there was no disputed issue of material fact, breach of duty and causation also became questions of law. See Deal, 286 Kan. at 858-89; Yount, 282 Kan. at 624. Specifically, she contends that (1) there was no evidence that she fell asleep or breached her duty of care in any way, and (2) even if she had fallen asleep, doing so was as a matter of law not negligent under the circumstances. We disagree on both counts and conclude that both of these questions were properly submitted to the jury.
First, Missy is mistaken when she argues that there was “no evidence” she fell asleep behind the wheel. Duskin did not need conclusive, direct evidence of whether she fell asleep in order to survive her motions for summary judgment and judgment as a matter of law. Circumstantial evidence may be considered “substantial competent evidence” showing negligence. See Yount, 282 Kan. at 624-25; Casey, 199 Kan. 538, Syl. ¶ 6.
It is true, as Missy points out, that nobody “knows” what occurred immediately prior to the collision, as the passengers were asleep and she does not remember what happened. But Missy herself told the law enforcement officer at the scene that she had probably fallen asleep, a witness who was driving in a car behind Missy observed Missy’s car swerve and veer prior to leaving the highway, and of course the accident occurred close to midnight after a very long day and near the end of a long trip. While this circumstantial evidence does not exclude every other reasonable explanation for the crash, the jury could infer, without resorting to pure speculation, that Missy fell asleep behind the wheel. See Kuxhausen, 291 Kan. at 320. We do not offer our own opinion on the matter; .our point is merely that the district court properly referred this factual question to the jury. See Deal, 286 Kan. at 859 (affirm ing that in the “vast majority” of cases negligence is for the jury to determine).
We also reject Missy’s second argument, which is that even if she did fall asleep there was no evidence that this constituted negligence, and thus she was entitled to summary judgment or judgment as a matter of law. We are confident that in this case whether falling asleep was negligent was properly submitted to the jury, and we also note that this conclusion is in accord with the law in other jurisdictions. See Akin v. Estate of Hill, 201 Kan. 306, 313, 440 P.2d 585 (1968) (stating that, in general, “where the driver of a motor vehicle has become drowsy or has fallen asleep, thus precipitating an accident, the issue of whether he has been guilty of gross and wanton negligence is for tire jury to determine”); see also, e.g., Sutton v. Inland Construction Co., 144 Neb. 721, 728, 14 N.W.2d 387 (1944) (stating that “the fact that one falls asleep while driving an automobile constitutes sufficient evidence of negligence to require the question of the driver’s negligence to be submitted to the jury”); Spivak v. Heyward, 248 App. Div. 2d 58, 60, 679 N.Y.S.2d 156 (1998) (holding that a prima facie showing that die driver fell asleep while driving raises a rebuttable presumption of negligence); Bernosky v. Greff, 350 Pa. 59, 60-61, 38 A.2d 35 (1944) (similar).
Missy cites several cases in purported support for her position that the district court erred in denying her motion for summary judgment and motion for judgment as a matter of law, but they actually further emphasize that whether falling asleep constituted negligence is a question of fact for the jury, not a question of law for the court. For example, she cites Shanley v. Shanley, 27 Conn. Supp. 417, 241 A.2d 543 (Conn. Super. 1968), for the proposition that falling asleep behind the wheel is not necessarily negligent. But the court in Shanley declined to rule on whether going to sleep at the wheel required a conclusive finding of negligence-because doing so would be impermissibly “arrogating to itself the role of a trier of facts.” 27 Conn. Supp. at 420-21; see also Diamond State Tel. Co. v. Hunter, 41 Del. 336, 21 A.2d 286 (Del. Super. 1941) (concluding that whether the driver fell asleep involuntarily was a question of fact for the jury in deciding whether the driver had overcome the presumption that falling asleep was negligent). Another case cited by Missy is easily distinguishable from her situation, as it involved a front-seat passenger who jerked the steering wheel away from the driver as the passenger was waking up. See Ballew v. Aiello, 422 S.W.2d 396 (Mo. App. 1967).
Missy also cites to Schoof v. Byrd, 197 Kan. 38, 415 P.2d 384 (1966), and she argues that it provides an example of the court relying on factors other than the two at issue here—the driver falling asleep and a resulting accident. She further suggests the decision supports the conclusion that a driver should not be responsible if tire driver falls asleep without volition or knowledge of warning circumstances. Missy makes much of testimony that she did not seem fatigued or too tired to drive either to herself or Dusldn, but this does not amount to an uncontested fact—one not susceptible to debate among reasonable minds—that if she fell asleep she did so unexpectedly and non-negligently. See, e.g., Deal, 286 Kan. at 858; Bracken, 272 Kan. at 1275. Indeed, in finding as a matter of law that Schoof s contributory negligence contributed to his automobile accident and resulting injuries, this court focused on the warning signs of Schoofs sleepiness, noting that Schoof “convicted himself of contributory negligence, which was a proximate cause of his injury, by admissions made in his own testimony”—namely, his admissions that he was blurry eyed, that he considered this condition a “pretty good warning” of sleeplessness, and that he thought it was dangerous to keep driving after this warning. 197 Kan. at 42-43, 50, 52.
Nevertheless, Schoof does not suggest that a driver who falls asleep without warning is not negligent. See generally 197 Kan. 38. If anything, Schoof illustrates the amount and type of uncontrov-erted evidence needed before a court can conclude that the negligence elements of breach of duty and causation have become questions of law. See 197 Kan. at 42-43, 50. Missy’s case does not involve such uncontroverted evidence; her case is much more like the “vast majority” of negligence cases in which the juiy must decide whether there has been a breach of duty that caused the plaintiff s injuries. See Deal, 286 Kan. at 859.
In other words, to the extent Missy argues that unexpectedly falling asleep while driving is “not necessarily” negligent, well, that is the point: It may not necessarily be negligent, but it is not as a matter of Kansas law not negligent, either. It is precisely because the question could be resolved either way that tire jury needed to weigh all of the evidence and circumstances and determine, as a factual matter, whether Missy fell asleep and, if she did, whether she deviated from the conduct of a reasonably prudent driver. See Deal, 286 Kan. at 859. Simply put, the jury could have concluded that Missy did not act as a reasonably prudent driver. See Kuxhausen, 291 Kan. at 320; Deal, 286 Kan. at 859. Accordingly, assuming Missy fell asleep, whether this constituted negligence was a disputed issue of fact that was properly given to the jury to decide.
As a result, we affirm the district court’s denial of Missy’s motion for summary judgment and motion for a directed verdict on the grounds that Missy’s negligence was a question of fact for the jury.
Issue 3: Duskin’s Comparative Negligence Jury Instruction Issues
We now arrive at the pivotal issue in this appeal: Duskin’s assertion that the district court erred in instructing the jury to compare his fault to that of Missy’s. Dusldn also asserts that tire district court erred by declining to instruct the jury that Missy’s negligence could not be imputed to Dusldn. We agree that the district court erred in instructing the jury on comparative fault.
3.1 Framework for analyzing jury instruction issues
When analyzing jury instruction issues, we (1) determine whether the issue can be reviewed, (2) determine whether any error occurred, and (3) finally determine whether the error requires reversal. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012); see also State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012) (explaining that “reviewability” must be considered from both jurisdiction and preservation standpoints, though only preservation is relevant in Duskin’s suit).
The first and third steps are interrelated in that whether a party has preserved an issue for review will impact the standard by which we determine whether any error is reversible. See Williams, 295 Kan. at 515-16. If a party preserves a jury instruction issue by raising an appropriate argument before the district court, there are no reviewability problems: We will determine whether there was an error and, if so, ask whether it was “harmless.” Plummer, 295 Kan. at 162; see Williams, 295 Kan. at 518; see also K.S.A. 60-261. This means that for preserved jury instruction issues we will reverse “if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see Plummer, 295 Kan. at 168; see also Williams, 295 Kan. at 516 (explaining that the burden to show harmlessness shifts to the party benefitting from the error).
If, on the other hand, a party fails to preserve an objection to the jury instructions by not raising the argument before the district court, we will still review whether the instruction was legally and factually appropriate but will reverse only for “clear error.” Williams, 295 Kan. at 510, 516. “ ‘An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the juiy would have returned a different verdict.’ ” Hawkinson v. Bennett, 265 Kan. 564, 581, 962 P.2d 445 (1998); see Williams, 295 Kan. at 516 (explaining that the burden to show clear error remains on the party seeking reversal).
3.2 Preservation
Turning to Duskin’s arguments, we first ask whether any of the alleged errors were preserved. Williams, 295 Kan. at 515; Plummer, 295 Kan. at 163. Before us, Duskin claims three of the jury instructions were erroneous and a fourth instruction, which he had proposed, was omitted in error. One of the three contested instructions—Instruction 13, which tracked the language of PIK Civ. 4th 121.95 (Duty of Vehicle Passenger)—delineated a passenger’s duty to “avoid injury to himself.” The two other disputed instructions dealt with comparative fault. Instruction 14, which corresponded to PIK Civ. 4th 105.01 (Comparative Fault Theory and Effect), explained the theory of comparative fault and informed the juiy that it “must decide this case by comparing the fault of the parties.” Instruction 15, which corresponded to PIK Civ. 4th 105.03 (Comparative Fault—Explanation of Verdict), permitted the jury to assign fault to Dusldn and/or Missy. Duskin’s proposed instruction— Proposed Instruction 1—follows PIK Civ. 4th 121.94 (Negligence of Driver Not Imputed to Passenger).
Duskin properly preserved his appellate arguments by objecting to Instructions 14 and 15, and requesting Proposed Instruction 1. Consequently, we will reverse if there is error related to the Instructions 14 or 15 or Proposed Instruction 1 and if there is a reasonable probability that the error affected the outcome of the trial in light of the entire record. Williams, 295 Kan. at 516; Plummer, 295 Kan. at 162; Ward, 292 Kan. at 569.
Preservation issues plague Duskin’s arguments regarding Instruction 13, however. Duskin voiced no objection to Instruction 13 in the district court. In fact, Dusldn proposed the instruction, along with Missy, and arguably invited any error regarding Instruction 13. See Secretary of Kansas Dept. of Transportation v. Underwood Equipment, Inc., 273 Kan. 453, 456, 44 P.3d 439 (2002) (“ ‘On appellate review, a party may not complain of rulings or matters to which it consented or take advantage of error that it invited or in which it participated.’ [Citation omitted.]”); see also State v. Hargrove, 48 Kan. App. 2d 522, 531, 293 P.3d 787 (2013) (noting the “long-standing rule” that “parties cannot complain to an appellate court about their own conduct at trial—or that of their lawyers—or about rulings they have asked [or invited] a judge to make,” a rule that applies to jury instructions).
Moreover, while Duskin argued in his brief to tire Court of Appeals that there was no basis for comparing his fault to Missy’s and in doing so discussed Instruction 13, he did not specifically attack Instruction 13 until his petition seeldng this court’s review of the Court of Appeals opinion. In his petition, he urged us to adopt Judge Hill’s dissent, which pointed out the error in giving Instruction 13. Siruta v. Siruta, No. 105,698, 2013 WL 451890, at *6-8 (Kan. App. 2013) (unpublished opinion) (Hill, J., dissenting). This raises a question of whether Dusldn sufficiently briefed the issue before the Court of Appeals to preserve it for appellate consideration. See Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 41) (appellant’s brief must include the “arguments and authorities relied on”); State v. Bowen, 299 Kan. 339, 355, 323 P.3d 853 (2014) (“When a litigant fails to adequately brief an issue it is deemed abandoned.”). The Court of Appeals panel recognized that Duskin’s arguments regarding Instructions 14 and 15 implicated Instruction 13. And it apparently believed Duskin raised the issue because it is so intertwined with his objections to Instructions 14 and 15. In fact, in discussing Instruction 13’s propriety, the majority noted it “is the legal predicate that compels the giving of the comparative fault instructions.” Siruta, 2013 WL 451890, at *6.
As the Court of Appeals suggests, Duskin has avoided the harsh application of the invited error doctrine and tire general rule that a party waives an argument by failing to brief it. Duskin’s objection to Instructions 14 and 15, which preserved the real substance of his argument regarding the comparative fault instructions, suggests he inadvertently invited error by proposing Instruction 13. Consequently, we will not treat his mistake as a bar to review under the invited error doctrine. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011) (explaining that a party may not invite error and tiren complain of drat error on appeal); Hargrove, 48 Kan. App. 2d at 550-51 (invited error does not generally apply to a clearly inadvertent mistake or when a litigant does not fully comprehend the exact error at issue). Our conclusion is bolstered by the fact that Duskin preserved his argument regarding Proposed Instruction 1, which should be given if Instruction 13 is given. See PIK Civ. 4th 121.94, 121.95. In effect, he objected to and briefed this grouping of related instructions. Also, he is not seeking to advance an entirely new legal theory on appeal.
Accordingly, we will permit Duskin to raise his argument that Instruction 13 was inappropriate. However, because he did not assert a specific objection to Instruction 13, we will reverse only if we find that there has been clear error, meaning that we are able to reach a firm conviction that had the error not occurred there was a real possibility die jury would have returned a different verdict. See Williams, 295 Kan. at 516; Hawkinson, 265 Kan. at 581.
3.3 Legal and factual basis for the comparative fault instructions
We now turn to the question of whether the district court erred in allowing the jury to compare Duskin’s negligence. We use an unlimited review to determine whether an instruction was legally appropriate, and we also look to whether there was sufficient evidence, viewed in the light most favorable to tire defendant or the requesting party, that would have supported the instruction. Williams, 295 Kan. at 515-16, 518; Plummer, 295 Kan. at 161-62 (utilizing a four-step review of jury instructions, in which the second and third step ask whether any error occurred). For instructions that were actually given, we “consider!] the instructions as a whole without isolating any one instruction,” and we “review[] the instruction to see whether it properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury.” State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014).
There is no genuine dispute as to whether these instructions accurately state the law they reflect; the question is whether the instructions were legally appropriate or factually supported in this particular case. Duskin’s arguments relate to his duty as a passenger, whether he owed a duty to Tate, and, if so, whether that duty was breached.
In considering these arguments, we stress, at the outset, a point that has often been lost in this litigation and appeal—the ultimate questions the jury was asked to decide were whether anyone’s negligence caused Tate’s death and, if so, whose. This means that Duskin’s negligence can only be compared if he can be legally responsible for Tate’s death. See K.S.A. 60-258a; McCart v. Muir, 230 Kan. 618, 630-31, 641 P.2d 384 (1982) (“In applying the comparative negligence statute ... in an action for death by wrongful act . . . the percentage of causal fault attributable to decedent’s negligence plus the percentage of additional causal fault attributable to any direct negligence of the plaintiff are to be deducted from tire amount of damages awarded.” [Emphasis added.]).
For Missy to establish Duskin’s responsibility, she must establish a prima facie case of negligence against Duskin. As with all negli gence cases, Missy’s burden begins with her obligation to establish that Duskin owed a duty to Tate, a fellow passenger. See Yount, 282 Kan. at 623-24. When speaking of a passenger’s duty under Kansas law, we have stated: “[A] passenger can only be liable for negligence in two situations: (1) where there was a failure to use due care/or his or her own safety as a passenger in the automobile [or] (2) under a joint enterprise or when the passenger and driver had a special relationship which created some duty where the negligence of the driver would be imputed to the passenger.” (Emphasis added.) Kindel v. Ferco Rental, Inc., 258 Kan. 272, 286, 899 P.2d 1058 (1995) (citing Akins v. Hamblin, 237 Kan. 742, Syl. ¶ 2, 703 P.2d 771 [1985]).
The first of these circumstances arises from Duskin’s duty to himself—a duty to use due care for his own safety. Kindel, 258 Kan. at 286. Logically, if Duskin had protected himself from potential injury he would have indirectly protected Tate. But that does not mean he owed Tate a duty as a matter of law. In fact, this court has specifically stated that the first situation—a passenger’s duty to protect himself or herself—does not impose upon the passenger a legal duty to other passengers unless one of the circumstances in the second situation—the existence of either a special duty or a joint enterprise—also applies. Akins, 237 Kan. at 744-45.
Missy has not alleged that there was a special relationship between her and Duskin that would allow her negligence to be imputed to him. See 237 Kan. at 746-47 (discussing special relationship theories that might give rise to passenger’s liability; citing Restatement [Second] of Torts § 315 [1964]). Instead, she has focused on Duskin’s vicarious liability for her negligence as a driver that would be imputed to Duskin under the joint enterprise theory. See Scott v. McGaugh, 211 Kan. 323, 326, 506 P.2d 1155 (1973). But tire district court refused to give the joint enterprise instruction.
As a result, the only theory the jury had to consider in this case for Duskin’s possible negligence was based on Duskin’s duty to himself. In instructing the jury on Duskin’s duty to himself, the district court and, later, the Court of Appeals majority, failed to distinguish between Duskin’s duty to a fellow passenger and Duskin’s duty to himself. Here, Duskin’s duty to himself was not an issue because Dusldn made no claim for his own bodily injury, only for his losses deriving from Tate’s death. See K.S.A. 60-1902 (permitting an heir “who has sustained a loss by reason of the death” to bring a wrongful death action).
3.4 Applying these principles to the instructions
Juiy Instruction 13 explained to the jury Duskin’s duty to protect himself. Instruction 13 tracks the language of PIK Civ. 4th 121.95 (Duty of Vehicle Passenger):
“If a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to himself, then it is his duty to do what the ordinary person would do under the circumstances. Unless such knowledge and circumstances exist, he may rely upon tire driver to attend to the operation of the vehicle.” (Emphasis added.) PIK Civ. 4th 121.95.
The Notes on Use for this instruction explain that it “is to be used when the claim of the passenger is against a wrongdoer other than his own driver.” (Emphasis added.) PIK Civ. 4th 121.95, Notes on Use. And this court has stated that this instruction “applies only where there is a question as to the duty the passenger owes to himself,” not to another passenger. (Emphasis added.) Akins, 237 Kan. at 745 (citing PIK Civ. 2d 8.91, which is functionally identical to PIK Civ. 4th 121.95).
Cases applying PIK Civ. 4th 121.95 (Instruction 13) and the Notes on Use illustrate tire difference between the duty to self— i.e., the duty Duskin would have had to protect himself from negligence—versus the duty of one passenger to his or her fellow passengers—i.e., Duskin’s duty to Tate. The first scenario typically arises after a two-vehicle crash in which an injured passenger in Vehicle 1 sues the driver of Vehicle 2, and the injured passenger’s duty of care to himself or herself becomes an issue (say, the driver of Vehicle 2 asserts that the passenger clearly perceived a danger posed by Vehicle 2 but failed to warn his own driver). See Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984) (driver and passenger together sued another driver and a county entity); Smith v. Union Pacific Railroad Co., 222 Kan. 303, 564 P.2d 514 (1977) (passenger sued the railroad when she was injured after her car was struck by a train); Curtiss v. Fahle, 157 Kan. 226, 139 P.2d 827 (1943) (passenger filed a personal injury claim after the vehicle in which he was riding collided with a truck).
In such a case, if the jury concludes that the driver in Vehicle 2 breached his or her duty as a driver but that the passenger in Vehicle 1 also breached his or her duty of self-care (and assuming that the jury also concludes that both parties’ breaches proximately caused the passenger’s injuries), then the jury must compare the fault of the passenger and the driver to determine whether the passenger is entitled to an award. In this scenario, PIK Civ. 4th 121.95 (Instruction 13), PIK Civ. 4th 105.01 (Instruction 14), and PIK Civ. 4th 105.03 (Instruction 15) would be appropriate. PIK Civ. 4th 121.95 (Instruction 13) informs the jury about what the passenger’s duty entails, and PIK Civ. 4th 105.01 and 105.03 (Instructions 14 and 15) explain how the jury is to compare fault. PIK Civ. 4th 121.94 (Proposed Instruction 1) should be given as well, as any negligence of the driver in Vehicle 2 should not be imputed to the passenger in Vehicle 1; rather the question is whether the passenger breached his or her duty protect himself or herself. See PIK Civ. 4th 121.94, Notes on Use.
On the other hand, if the question is not whether the passenger breached his or her duty to protect himself or herself, PIK Civ. 4th 121.95 (Instruction 13) should not be given because the narrow subject of that instruction—a passenger’s duty to himself or herself—is not relevant. See Akins, 237 Kan. at 745. And if there is no duty, “a person cannot be at fault and therefore cannot be made a party subject to having his negligence compared.” 237 Kan. at 749.
As we have noted, Dusldn’s duty to himself is not at issue in this case. Put simply, Instruction 13, together with Instructions 14 and 15, informed the juiy about the wrong duty and then instructed the jury to compare any negligence for Dusldn’s failure to protect himself with Missy’s negligence that caused Tate’s death. See, e.g., Akins, 237 Kan. at 745, 749.
In reaching the opposite conclusion about the comparative negligence instructions given to the jury, the Court of Appeals majority did not áccount for the language in PIK Civ. 4th 121.95 (Instruction 13) limiting the duty it outlined to situations where a passenger should act to “avoid injury to himself.” Further, the majority did not discuss the Notes on Use to PIK Civ. 4th 121.95 (Instruction 13), which limits the instruction to a passenger s claims against someone other than his or her own driver. Siruta, 2013 WL 451890, at *6. The Court of Appeals majority did cite an old case predating tire adoption of comparative fault in which this court held that there was a question of fact concerning a sleeping passenger s negligence in a personal injury case. See 2013 WL 451890, at *4-5; Howse v. Weinrich, 133 Kan. 132, 135, 298 P. 766 (1931). Despite the reliance on contributory negligence, this case might have been relevant had Tate’s own negligence been at issue, or if Duskin was bringing a suit that implicated his duty to protect himself. But the case bears no relevance to Dusldn’s wrongful death suit and whether he owed and breached a duty to Tate. For the same reason, the Court of Appeals majority misplaced its reliance on Smith, another personal injury case, and on personal injury cases from other jurisdictions. See Siruta, 2013 WL 451890, at *5-6; Smith, 222 Kan. 303. To the extent that the Court of Appeals relied on Sledge v. Continental Cas. Co., 639 So. 2d 805 (La. App. 1994), we decline to afford this case controlling weight because, although the facts of Sledge are similar to the instant case, the law of Louisiana regarding passenger negligence is far more expansive than that of Kansas. Compare 639 So. 2d at 813, with Kindel, 258 Kan. at 286.
Under Kansas law, Instruction 13 should not have been given in this case. And as Instruction 13 falls, so must Instructions 14 and 15: They could only apply to instances where the passenger is alleged to have breached his or her duty to himself or herself. If the issue is whether a passenger owed a duty to another, it is not comparative fault principles but the theory of imputed negligence that is relevant. See Lightner v. Frank, 240 Kan. 21, 24, 727 P.2d 430 (1986) (stating that imputed negligence may bar a plaintiff s re-coveiy “not from culpability or wrongful act of the plaintiff but from liability for another person’s wrongful act,” which explains why comparative fault instructions would not be appropriate for a joint enterprise issue); Akins, 237 Kan. at 745, 749; see also Scott, 211 Kan. at 326 (explaining that imputed negligence entirely bars a plaintiffs recovery). Accordingly, we conclude that Instructions 14 and 15 were also issued in error.
The errors regarding Instructions 13,14, and 15 require reversal under any standard of review because these instructions were the only passenger negligence theory presented to the jury and the jury found Duskin 50% at fault for the accident. Thus, applying the clearly erroneous standard, we reverse the jury’s verdict because we are firmly convinced that the error of allowing Dusldn’s negligence to be compared to Missy’s undoubtedly affected the verdict. See Williams, 295 Kan. at 516; Ward, 292 Kan. at 569; Hawkinson, 265 Kan. at 581. This holding means that Duskin’s arguments about Proposed Instruction 1 are moot.
Issue 4: What Guidance on Remand Is Necessary on Missy’s Remaining IssuesP
Missy raises three additional arguments: (1) The district court erred in not giving instructions on joint enterprise; (2) the district court erred in allowing Duskin’s attorney to question her about interrogatory answers she did not sign; (3) the district court erred in ruling that K.S.A. 8-1345(d) (precluding evidence that a child was not properly secured in a safety restraint system) is not unconstitutional as applied to this case; and (4) the district court erred when it did not allow her to raise the common-law defenses of parental and interspousal immunity.
The outcome of these issues does not impact the course of this appeal. Nevertheless, because each of those issues is likely to arise again on remand, we discuss each briefly in order to provide guidance to the district court and the parties. See Sierra Club v. Moser, 298 Kan. 22, 62, 310 P.3d 360 (2013) (recognizing this court may discuss issues to provide guidance on remand).
4.1 Joint enterprise instructions
Missy’s Proposed Instructions 2 and 3 would have informed the jury that Missy’s negligence could have been imputed to Duskin if Missy and Duskin were operating the vehicle in a joint enterprise. They also defined the elements of a joint enterprise. The proposed instructions conformed to Kansas law on imputed negligence and joint enterprise liability. The question is whether the instructions were legally and factually appropriate in this case.
As the proposed instructions would have informed the jury, four elements are necessary to establish a joint enterprise such that the driver s negligence may be imputed to the passenger: “(1) an agreement, (2) a common purpose, (3) a community of interest and (4) an equal right to a voice, accompanied by an equal right of control over tire instrumentality (the automobile).” Scott, 211 Kan. at 327; see Lightner, 240 Kan. at 24-25; see also Cullip v. Domann, 266 Kan. 550, 557, 972 P.2d 776 (1999) (explaining that “the elements of joint ventures and joint enterprises are essentially the same, with the distinction that joint ventures apply to business ventures while joint enterprises do not”).
Regarding the fourth element, “the essential question is whether, under the facts and circumstances, there is an understanding between the parties that [the passenger] has the right and is possessed of equal authority to prescribe conditions of use and operation.” (Emphasis added.) Schmid v. Eslick, 181 Kan. 997, Syl. ¶ 4, 317 P.2d 459 (1957). We refer to this as the “right of control” test, and we have explained it as follows: “Stated simply, there must be an understanding or an agreement in advance between the driver and the passenger that the passenger has a right to tell the driver how to drive the automobile.” Lightner, 240 Kan. at 25. The key is thus the existence of an agreement, and the subject of the agreement must be “equal privilege and right to direct and control [the vehicle’s] operations.” 240 Kan. at 25; see also Schmid, 181 Kan. at 1003 (stating it is “clear that in the ordinary and accepted affairs of men, tire ‘control’ of an automobile which is ascribed to a passenger in applying the doctrine of joint enterprise, often is too obviously a fiction upon which is erected a second fiction that the driver is his agent”).
The right of control of a vehicle distinguishes a joint adventure, which does not result in imputed liability, and a joint venture, which does. See Lightner, 240 Kan. at 25; see also Scott, 211 Kan. at 327 (right of control “may not be required to carry out the com mon purpose in some joint adventures, since mutual use and operation of an automobile may not be considered necessary to carry on die joint adventure”); Schmid, 181 Kan. at 1002-03 (passenger and driver on joint adventure do not agree to a “right to control,” and, as a result, there is no joint enterprise). A joint adventure— as opposed to a joint enterprise—involves “mere association of persons riding together in an automobile, having a common purpose in making a trip and a common destination.” Schmid, 181 Kan. at 1002; see also 181 Kan. at 1003 (cautioning against applying joint enterprise liability in situations “which are in fact only matters of friendly or social co-operation and accommodation”); Schmid, 181 Kan. at 1004 (reviewing Kansas cases rejecting, as joint enterprises, “companions going on a hunting trip with die passengers paying the expenses”; “members of a family going to visit a relative at the solicitation or request of a passenger”; “passengers returning from a concert”; “a son and father traveling together to seek work, sharing expenses”; and “delegates of a fraternal organization traveling together to a state convention and sharing expenses”).
In Lightner, die existence of a joint enterprise between a driving wife and a passenger husband was at issue, but the only evidence on that particular subject was from a family member, who testified that the husband did not tell the wife how to drive, where to drive, or how fast to drive. 240 Kan. at 27. This court stated that the record was “completely lacking in any testimony whatsoever that there was any agreement or understanding . . . that [the husband] had the right to control [the wife’s] operation of an automobile.” 240 Kan. at 27. Accordingly, this court held “as a matter of law that there is no substantial competent evidence in the record to establish ... a joint enterprise at the time of the accident.” 240 Kan. at 28 (continuing on to conclude the district court had erred in instructing the jury about joint enterprise and in permitting the jury to consider this theory of negligence).
An arguably stronger case of joint enterprise was presented to a jury in Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980 (1971). There, the driver and the passenger were in business together and worked together, the business records were kept jointly, the income went into a joint account and joint tax returns were filed, the title to the car involved in the accident was also held jointly, and the accident occurred on the way to work. While these facts supported giving the jury joint enterprise instructions, the jury ultimately concluded that there was no joint enterprise. This court declined to overturn tire verdict, as even though the facts indicated joint enterprise they did not establish joint enterprise as a matter of law. 206 Kan. at 660; see Scott, 211 Kan. at 330.
On the other hand, a jury—properly instructed on a joint enterprise theory—did find a joint enterprise in Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131 (1926). That case involved two young men who borrowed a car in order to drive around. On the outgoing journey, one young man (the defendant) drove from home to the midpoint, and the other young man drove from the midpoint to the destination. On the way back, die defendant drove from the destination to the midpoint, and the odier young man drove from die midpoint back home, during which leg of the journey die car struck a horse and buggy driven by the plaintiff.
On appeal, this court first rejected the argument that the district court should have resolved the joint enterprise issue as a matter of law, noting the argument was based on disputed evidence regarding the extent of control exercised by the two young men. But, upon review of the evidence, this court upheld the juiy’s verdict, concluding there was substantial competent evidence to support the jury’s conclusion that there was a joint enterprise: The two young men borrowed the car, and neither was a guest of the other or a mere passenger while the other was driving; and each had “equal authority” to say in which direction they would drive and how long they would spend at their destination, how the driving should be divided, and how frequently they should change drivers. 120 Kan. at 79. In essence, “[ejach one had equal authority over manipulation of the instrumentality by which the undertaking was to be accomplished, and, as a matter necessarily involved, had equal authority with respect to speed.” 120 Kan. at 79-80. This court has subsequently clarified that Howard involved an “understanding” between the two men that each had the right of equal authority to prescribe conditions, use, and operations of the car. Schmid, 181 Kam at 1003-04.
At first glance, Howard contains similar facts to the driving situation at issue in the instant case—two individuals trading driving duties during a common trip where both parties shared the same claim to the vehicle. See Howard, 120 Kan. at 77-80. Like the two men in Howard, Missy and Dusldn shared a “community of interest” and had a “common purpose” as tire two drivers participating in the trip across Kansas. The two men in Howard, however, also had a prior understanding or agreement that each of them had the right of control, meaning that each could dictate the other s use of the car. See 120 Kan. at 79-80; Schmid, 181 Kan. at 1003-04. Here, Missy did not present any evidence that she and Duskin had agreed that each had a mutual and equal right of control over the car. See Scott, 211 Kan. at 327; Schmid, 181 Kan. at 1003.
While Missy and Dusldn may have had a vague understanding that they would trade off driving shifts, this does not amount to an understanding that each party “has the right and is possessed of equal' authority to prescribe conditions of use and operation.” Schmid, 181 Kan. 997, Syl. ¶ 4. There is no evidence, for example, that Missy and Dusldn agreed that one could tell the other “how to drive the automobile” or that such orders would be followed. See Lightner, 240 Kan. at 25, 27 (looldng to whether there was testimony that showed the husband and wife agreed that the husband had "the right to control the wife’s operation of the car). In fact, Missy testified that Duskin did not make her drive when she did not want to or drive when she was too tired. Missy’s attorney elicited testimony from Duskin that neither he nor Missy could command the other “to do X, Y or Z.” Missy also testified that she and Dusldn would only ask each other if the other party wanted to drive; Missy points to no testimony that one could prescribe the other’s use or operation of the car. In other words, while there may have been a casual arrangement about driving between Missy and Dusldn in order to facilitate a common purpose (like in most family outings involving multiple drivers), there was no evidence of an agreement that each party would be able to prescribe the manner in which die other drove the car. See Lightner, 240 Kan. at 25, 27.
A joint enterprise does not exist absent this mutual right of control. Missy’s and Dusldn’s situation was, instead, a “mere associa tion of persons riding together in an automobile having a common purpose in making a trip and a common destination.” See 240 Kan. at 25; see also Scott, 211 Kan. at 327 (explaining that mutual right of control is not automatically present when there is a common purpose). Their situation was thus like the various car pools and rideshares that we have found did not show a joint enterprise. See, e.g., Scott, 211 Kan. at 328-31.
Accordingly, unless different evidence is presented on retrial, we conclude that there was not sufficient evidence, viewed in the light most favorable to Missy, that would support giving a joint enterprise instruction. See Scott, 211 Kan. at 331 (explaining that if the facts clearly show a passenger does not have a right to control, all of the elements of joint enterprise are, as a matter of law, not established).
4.2. Unsigned interrogatories
Missy also claims that the district court erred in allowing Duskin’s attorney to question her, on direct examination, about her unsigned interrogatory answers.
As Missy points out, K.S.A. 2014 Supp. 60-233 requires that “[t]he person who makes the answers [to interrogatories] must sign them, and the attorney who objects must sign any objections.” K.S.A. 2014 Supp. 60-233(b)(5). Generally, unverified interrogatory answers lack evidentiary value. See Tesco Corp. v. Weatherford Intern., Inc., 904 F. Supp. 2d 622, 636 (S.D. Tex. 2012) (verified or sworn pleadings are competent summary judgment evidence, but unverified answers to interrogatories and interrogatories not based on personal knowledge are not); Brady v. Blue Cross and Blue Shield, 767 F. Supp. 131, 135 (N.D. Tex. 1991) (“The court has been unable to locate a case ... in which unsworn, unverified interrogatory answers proffered by a nonmovant have been considered competent summary judgment evidence.”).
Duskin has not cited any authority suggesting the use of the interrogatories was appropriate. Instead he notes that Missy served tire interrogatories as if verified and they should therefore be treated as such. On remand, if the interrogatory answers are to be used, the parties should develop a more complete record regarding whether the use of the answers would be appropriate as a discovery sanction or develop some other foundation for their use. See K.S.A. 2014 Supp. 60-237(d).
4.3. KS.A. 8-1345(d)
Missy was prohibited from admitting evidence that Tate was not in a child seat because of K.S.A. 8-1345(d). Because of this, she contends that K.S.A. 8-1345(d) is unconstitutional as applied to her case, a point she raised before the district court to preserve the issue for appeal. She generally asserts that the statute infringes on her right to due process under the Fourteenth Amendment to the United States Constitution, in that it denied her a full and fair trial on the issue of comparative negligence.
We review questions involving tire constitutionality of statutes de novo. Miller v. Johnson, 295 Kan. 636, 647, 289 P.3d 1098 (2012). Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013); see also Rural Water District No. 2 v. City of Louisberg, 288 Kan. 811, 817, 207 P.3d 1055 (2009).
K.S.A. 8-1345(d) prohibits the admission of “[e]vidence of failure to secure a child in a child passenger safety restraining system or a safety belt” for tire “purpose of determining any aspect of comparative negligence or mitigation of damages.” See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 386, 819 P.2d 587 (1991) (discussing the passage of this provision). We have not expressly addressed the constitutionality of K.S.A. 8-1345(d), but we have discussed this provision with approval. See Watkins v. Hartsock, 245 Kan. 756, 757-58, 764-65, 783 P.2d 1293 (1989) (holding that evidence of misuse of a child safety restraint system, like evidence of nonuse, is inadmissible for purposes of determining comparative negligence or mitigation of damages and explaining that the statutory rule as well as the common law would prohibit this evidence).
Here, Missy has offered no real argument as to why, given our opinion in Watkins that K.S.A. 8-1345 applies the common-law rule for determining negligence, the legislature has abrogated her right to a fair trial by enacting K.S.A. 8-1345. See Bonin v. Vannaman, 261 Kan. 199, 217, 929 P.2d 754 (1996); Watkins, 245 Kan. at 757. We are not inclined to provide any such arguments for her. See McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994) (“A point incidentally raised but not argued is deemed abandoned.”)-
The legislature specifically precluded evidence of failure to secure a child in a safety restraint system in certain actions by statute, and this statute is a pronouncement of legislative policy respecting negligence. See Kansas Human Rights Comm'n v. Topeka Golf Ass'n, 18 Kan. App. 2d 581, 593, 856 P.2d 515 (1993), aff'd 254 Kan. 767, 869 P.2d 631 (1994) (providing that the legislature, and not the courts, have the authority to declare public policy for Kansas). She attacks this legislative judgment by aiguing that “keeping information from the finder of fact renders an unfair result,” but she cites no legal support for her position that the legislature’s public policy pronouncement—one this court found to be consistent with common law—is constitutionally infirm as applied to her.
Hence, we hold that, under the facts of this case, K.S.A. 8-1345(d) did not unconstitutionally deprive Missy of her right to due process under the Fourteenth Amendment to the United States Constitution.
4.4 Parental and interspousal immunity
Before the district court, Missy recognized Kansas caselaw generally prohibits the assertion of the defenses of parental and inter-spousal immunity. See Nocktonick v. Nocktonick, 227 Kan. 758, 759-70, 611 P.2d 135 (1980) (rejecting application of the parental immunity doctrine in Kansas after thoroughly investigating its general history as well as the justifications and exceptions adopted by other states); Flagg v. Loy, 241 Kan. 216, 217-19, 224, 734 P.2d 1183 (1987) (abrogating die interpsousal immunity doctrine because, inter alia, the “legal fiction of the unity of husband and wife” was no longer recognized). Yet, she asserted the defenses for the purposes of preserving several arguments for appeal. Now she asks us to reconsider whether these common-law defenses have a place in Kansas law. But she presents no arguments as to why our de cisions in Nocktonick and Flagg were infirm. Instead she asserts some additional arguments regarding each of the defenses.
Regarding the parental immunity doctrine, Missy presents two arguments. She relies on Bonin, 261 Kan. at 237-38, in which this court recognized the defense’s availability in exceptional circumstances where the exercise of parental discretion or authority was involved, such as in a parent’s failure to investigate or pursue a medical malpractice action. But Missy does not explain how that exception applies here. Second, she suggests the defense should be available where the child is deceased and the plaintiff seeks damages on behalf of the child’s heirs. Other courts have rejected this argument, and Missy fails to argue why the reasoning of these courts should be rejected. See, e.g., Clark v. Sears, Roebuck & Co., 731 S.W.2d 469, 473 (Mo. App. 1987) (finding where “parent brings an action in her own name for the wrongful death of her infant, the negligence of the parent that contributes to the casualty which produced the death can be assessed against the parent”); Helton v. Reynolds, 640 S.W.2d 5, 11 n.2 (Tenn. App. 1982) (stating “the parents being next of kin are the beneficiaries of the proceeds of any recoveiy and, consequently, a defense may unquestionably be based upon their negligence”); Cole v. Fairchild, 198 W. Va. 736, Syl. ¶ 7, 482 S.E.2d 913 (1996) (“The parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense in an action brought by the parent for the wrongful death of a child.”); but see Campbell v. Callow, 876 S.W.2d 25, 27 (Mo. App. 1994) (wrongful death claim; deceased minor’s death took place before Missouri abrogated the parental immunity doctrine; therefore, action barred by the doctrine).
As to the spousal immunity doctrine, she seeks to impose a rule that would make it impossible for an heir at law who was married to a tortfeasor to bring a wrongful death action. Such a rule would be in conflict with K.S.A. 60-1902, which provides that a wrongful death action “may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” She fails to present a persuasive reason why a common-law rule should prevail over this statutoiy language.
Thus, under the facts of this case and, more particularly given the limited arguments presented, neitirer parental nor interspousal immunity doctrines are available as a defense.
We reverse the Court of Appeals decision and the district court’s judgment and remand to the district court for proceedings consistent with this opinion.
Reversed and remanded.
Michael J. Malone, Senior Judge, assigned. | [
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Leben, J.:
Kevin Wright appeals the district court’s ruling that invalidated a transfer his uncle, Richard Sheils, made of an ownership interest in Richard’s home. Shortly before Richard’s death, he transferred his home to himself and Kevin as joint tenants with rights of survivorship. But when Richard died, his brother, Charles Sheils, claimed the property because Richard had previously signed a deed that would transfer the property to Charles upon Richard’s death.
The district court held that because Richard had not revoked the transfer-on-death deed, tire property became Charles’ on Ri chard’s death. But the Kansas statutes on transfer-on-death deeds provide that the recipient of property from such a deed takes the property “subject to all conveyances... made by the record owner . . . during [his] lifetime.” K.S.A. 59-3504(b). So Richard was free to transfer the property during his lifetime, and the joint transfer to himself and Kevin—with rights of survivorship—was therefore valid. The district court erred by ruling that the property became Charles’ upon Richard’s deadr.
Factual and Procedural Background
Richard signed a transfer-on-death deed to his house in 2010, providing tiiat the house would become Charles’ upon Richard’s death. That deed was properly recorded in 2010.
Three years later, on July 12, 2013, Richard signed a quitclaim deed for the same property, transferring the property to himself and his nephew Kevin as joint tenants with the right of survivor-ship—a type of ownership in which the property passes to the surviving tenants when one tenant dies. The quitclaim deed wasn’t recorded before Richard’s death but was delivered to Richard’s attorney, Chris Montgomery. Montgomery said after Richard’s death that Richard had given him the quitclaim deed with instructions to record it with the register of deeds.
Richard died on September 6, 2013, and the quitclaim deed was recorded on September 20, 2013.
In March 2014, Charles and his wife, Sheryl, filed suit claiming title to the house. (They claimed title on behalf of a personal trust in which they held various assets.) They sued both Kevin and his wife, Nittaya; although the wives were not involved in the deeds, they were presumably included in the suit to resolve any potential interest they might have in the property. Kevin filed a counterclaim claiming he owned the property.
Both sides filed motions for summary judgment, and the district court ruled in Charles’ favor. The court said that Richard had not revoked the transfer-on-death deed or recorded the quitclaim deed before his death. Based on those findings, the court held that Charles took the property under the transfer-on-death deed.
Kevin has appealed to this court.
Analysis
A person may use one or more of several legal mechanisms to transfer property to an intended recipient upon the owner’s death. Some use wills and trusts. Others use simpler methods, like the transfer-on-death deed or joint tenancy with rights of survivorship for real property. For personal property, similar methods include the transfer-on-death registration for vehicles or the payable-on-death designation for financial accounts. When a person uses more than one method—with conflicting directions—for the same piece of property, the matter often gets resolved in court. And so it is for Richard’s home.
Either of the methods Richard used could have effectively transferred his home. Had only the transfer-on-death deed existed, the property would have transferred to Charles on Richard’s death. Similarly, had there been only the deed transferring ownership jointly to Richard and Kevin with rights of survivorship, the property would have transferred to Kevin’s sole ownership on Richard’s death.
Charles asserts that he took ownership under the transfer-on-death deed, so let’s begin by considering what that deed could have transferred here. The district court correctly ruled that the transfer-on-death deed had not been revoked. This is so even though Richard put a provision into the quitclaim deed saying that it revoked the transfer-on-death deed. Transfer-on-death deeds are authorized by statute, and they may be created—or terminated-—only as provided by statute. The revocation of a transfer-on-death deed requires that the revocation be recorded with the register of deeds during die owner’s lifetime. K.S.A. 59-3503(a). Since that wasn’t done (the quitclaim deed wasn’t recorded until after Richard’s death), the transfer-on-death deed remained in effect at Richard’s death.
But this doesn’t answer the question that ultimately decides our case: Did any property remain to be transferred under tire transfer-on-death deed at the time of Richard’s deadi? If Richard retained the power to transfer the property out of his own ownership during his lifetime, then there might be,nothing left to transfer to Charles at Richard’s death.
This question is answered by statute too. K.S.A. 59-3504(b) provides that those receiving property through a transfer-on-death deed, called “grantee beneficiaries,” take their interest subject to all conveyances the owner may yet make during his or her lifetime:
“Grantee beneficiaries of a transfer-on-death deed take the record owner’s interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, hens and security pledges made by the record owner or to which the record owner was subject during the record owners lifetime including, but not limited to, any executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or hen, claims of the state of Kansas for medical assistance . . . , and to any interest conveyed by the record owner that is less than all of the record owner’s interest in the property.” (Emphasis added.) K.S.A. 59-3504(b).
So whatever Charles was to receive through the transfer-on-death deed could be diminished by Richard during his lifetime.
And that’s just what Richard did—he conveyed the entire interest in the property to himself and Kevin as joint tenants with rights of survivorship. In a joint tenancy, the remaining joint tenant becomes owner of the full property interest upon the other’s death. Since Richard conveyed all of the property away during Richard’s lifetime, there was nothing to transfer on his death via the transfer-on-death deed.
The district court also noted that the quitclaim deed transferring the property to joint-tenancy ownership between Richard and Kevin wasn’t recorded. But tire lack of recording does not make that deed ineffective. As our court held in Reicherter v. McCauley, 47 Kan. App. 2d 968, 974, 283 P.3d 219 (2012), a deed transfers title when it is effectively delivered during the grantor’s life. In Reicherter, as in our case, the grantor delivered the signed deed to his attorney for recording. That made the deed effective between its parties—Richard and Kevin—even though it wasn’t recorded.
An unrecorded deed isn’t effective with respect to someone who takes action (like granting a mortgage or purchasing the property) after the unrecorded transfer without knowledge of it. See Reicherter, 47 Kan. App. 2d at 974-75. But that rule does not apply to Charles, who took no action here—he was merely the beneficiary of an act undertaken by Richard. Charles certainly took no action after the signing and delivery of the quitclaim deed; he simply remained as the beneficiary of the transfer-on-death deed. That status did not entitle him to any notice of the quitclaim deed. The transfer-on-death-deed statutes do not require notice to the beneficiary when the grantor revokes the transfer-on-death deed altogether. K.S.A. 59-3503(a), (b). In addition, K.S.A. 59-3501(b) provides that “notice to a grantee beneficiary of a transfer-on-death deed shall not be required for any purpose during the lifetime of the record owner.” (Emphasis added.) For these reasons, the failure to record this quitclaim deed did not make it ineffective.
The district court erred when it granted summaiy judgment to Charles and denied summary judgment to Kevin. The district court’s judgment is reversed, and we remand with directions to grant Kevin’s motion for summary judgment. | [
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Gardner, J.:
This case primarily asks whether an insured must receive actual notice of the insurers cancellation of property casualty insurance before that cancellation is valid. Based on precedent which finds that an insurers mailing of cancellation to the insured s last known address in accordance with the policy’s requirements is sufficient and that actual notice is not necessary, we answer that question, “no.” Although our precedent examines motor vehicle liability insurance policies, we believe that the rationale of those cases extends to the insurance policy at issue here. Accordingly, we affirm.
Procedural Background
The material facts are undisputed. In October 2012, Roger Arnold applied for a vacant house insurance policy. Foremost Insurance Company, Grand Rapids, Michigan (Foremost), issued him a “Dwelling Fire One Policy: Vacant or Occupied” and sent a copy of it to the Wichita, Kansas, mailing address Arnold had provided when he applied for insurance.
Arnold received the policy, which had a duration of 1 year, at his mailing address. It contained a specific provision regarding cancellation of the policy, stating:
“Notice of Cancellation or Nonrenewal. We will address the cancellation or nonrenewal notice to your address shown in the policy. ... If notice is mailed, proof of mailing will be sufficient proof of notice.”
Arnold paid the entire annual premium.
In December 2012, Foremost canceled Arnolds policy. Its notice of cancellation stated that the policy’s coverage would end on January 14, 2013, at 12:01 a.m., and fisted the reasons why the policy was being canceled. The notice also stated that if Arnold had already paid tire entire premium, he would receive an adjusted refund check. Foremost mailed the notice of cancellation and the refund check to the same Wichita mailing address that Arnold had provided to Foremost. Arnold claims he never received the notice or the refund check, and the parties agree that the refund check has not been cashed.
In May 2013, the house the policy had covered was damaged by hail. Arnold filed a claim with Foremost soon thereafter. Foremost responded with a letter dated June 5, 2013, and sent to Arnold’s same mailing address, stating the policy had been canceled and that it disclaimed coverage for his loss. Arnold responded that he had not received any cancellation notice or refund check, so Foremost sent him a second refund check, apparently to the same address it had used before. Arnold received this check but has not cashed it. Arnold paid almost $10,000 to repair the hail damage.
Arnold then sued Foremost for breach of contract, alleging it gave improper notice of cancellation and breached its duty to ask Arnold why he had not presented the refund check for payment. Arnold does not challenge Foremost’s reasons for cancellation or its right to cancel his policy upon proper notice.
Both parties moved for summary judgment. After a hearing on the motions, tire district court found that the public policy of Kansas no longer requires an insurer to give actual notice when canceling an insurance policy in accordance with its terms that require only mailing of a notice of cancellation and that Foremost did not have duty to follow up with Arnold when he failed to present the refund check for payment. As a result, the district court granted Foremost’s motion for summary judgment and denied Arnold’s motion. Arnold timely appeals.
I. Does Kansas law require actual notice?
We first examine Arnold’s claim that summary judgment was erroneous because Kansas law requires actual notice of an insurance policy’s cancellation. His argument is founded on Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P.2d 352 (1960), which held that actual notice was required. Arnold contends that more recent law contradicting Koehn is limited to automobile insurance policies and does not extend to property casualty insurance policies.
A. Standard of Review
A motion for summary judgment should be granted when the pleadings and evidence show “there is no genuine issue as to any material fact and that the movant is entitled tq judgment as a matter of law.” K.S.A. 2015 Supp. 60-256(c)(2). If reasonable minds can come to different conclusions based on the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). Appellate courts apply the same rules. 266 Kan. at 871.
Here, the facts are undisputed and the only questions are questions of law. See AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 729, 71 P.3d 1097 (2003) (finding ah insurance policy’s interpretation is a question of law). Our review is thus unlimited. Lee Builder, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 849, 137 P.3d 486 (2006). Regardless of the district court’s interpretation or construction, we may interpret or construe an insurance policy and determine its legal effect. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
B. Koehn
In Koehn, the Kansas Supreme Court considered whether a policyholder s actual receipt of a cancellation notice for an automobile policy was a prerequisite to that policys cancellation under the “‘standard cancellation clause/” 187 Kan. at 193. That clause, much like the one in this case, read:
“This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice . . . the effective date and hour of cancellation stated in the notice shall become the end of the policy period.” (Emphasis added.) Koehn, 187 Kan. at 193.
Our Supreme Court adopted the minority view that actual receipt of the cancellation notice by the policyholder is required before an insurer could cancel the policy. It expressly rejected the majority view that the insureds actual receipt of the cancellation notice was not a condition precedent to the cancellation of an insurance policy by the insurer. 187 Kan. at 195-96. The courts analysis was based on the policy language.
Koehn also found that interpreting the language otherwise would violate Kansas public policy. 187 Kan. at 202-03. Citing various Kansas statutes that indicated “a policy strongly favoring the protection of the public in the field of liability insurance coverage for motor vehicle owners,” it found “the overriding public policy of this state” favored actual notice:
“ ‘Clearly the object of the insured when he buys a policy of the land involved here is to receive protection in order that he might fulfill his obligations to those he has injured or damaged through the use of his automobile. The provision in the policy providing for notice of cancellation is obviously to give the insured an opportunity to procure other insurance. If the policy can be canceled at any time by merely depositing notice in the mails with no regard to whether or not notice is actually received, dien the object of tire notice may be completely nullified and there may be no chance of fulfilling the object sought in obtaining the insurance.’ ” Koehn, 187 Kan. at 202 (quoting Donarski v. Lardy, 251 Minn. 358, 88 N.W.2d 7 [1958]).
C. Post-Koehn developments
Fourteen years after Koehn, the Kansas Legislature enacted K.S.A. 40-3118(b), which relates to automobile liability insurance policies. This statute provides that a notice of nonrenewal will not be effective “until at least 30 days after mailing a notice of termination, by certified or registered mail or United States post office certificate of mailing, to the named insured.” The plain language of the statute implies that a properly mailed notice of termination is effective. That statute reflects the public policy of the state. See Whaley v. Sharp, 301 Kan. 192, 199, 343 P.3d 63 (2014) (finding “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].”).
Approximately 10 years after that statute s enactment, in Richmeier v. Williams, 9 Kan. App. 2d 222, 675 P.2d 372 (1984), the Kansas Court of Appeals reviewed a summary judgment which held that K.S.A. 40-3118(b) does not require actual receipt of notice of cancellation for nonpayment of premiums. We analyzed insurance policy language essentially identical to that involved in the present case and held the insurance policy required actual notice although the statute did not. 9 Kan. App. 2d 222, Syl. ¶ 3. Relying on Koehn, we held the insurance company promised actual notice/receipt of the cancellation, and we found a genuine issue of material fact as to whether the insured had received notice of cancellation of the policy. 9 Kan. App. 2d at 224.
Two years later, in Feldt v. Union Ins. Co., 240 Kan. 108, 110-11, 726 P.2d 1341 (1986), the Kansas Supreme Court examined the effect of that same statute. There, as here, the insurance company issued an insurance policy but a short time later sent the insured notice canceling the policy. Feldt was subsequently injured in an automobile accident, then sought a declaratory judgment that his insurance policy had not been effectively canceled because he had not received the cancellation notice. The sole issue on appeal was whether notice of cancellation of a motor vehicle liability insurance policy must be actually received by the insured before the policy is validly canceled. The court concluded that under K.S.A. 40-3118(b), which mirrored the policy’s language regarding notice requirements, the insurer need only mail notice of termination to effectively terminate the policy, thus proof of receipt was not required. Feldt, 240 Kan. at 111. Feldt found it "obvious that the legislature chose to reject the common-law (and minority) rule requiring actual receipt of notice.” 240 Kan. at 111. Feldt thus impliedly found that Koehn had been superceded by statute.
Thereafter, we expressly found that Feldt rejected Koehns rule as the public policy of the state and it held Richmeier was mere dicta. Bell v. Patrons Mut. Ins. Ass’n, 15 Kan. App. 2d 791, 793, 816 P.2d 407, rev. denied 249 Kan. 775 (1991).
Bell recognized in hindsight that in Richmeier, by having relied on Koehn, “we rewrote the insurance policy for the parties in the guise of public policy.” Bell, 15 Kan. App. 2d at 792. Bell held Kansas law did not require that notice of cancellation of a motor vehicle liability policy for nonpayment of premiums actually be received by the insured to effectuate a valid cancellation of policy, where the policy stated that proof of mailing would be sufficient proof of notice. 15 Kan. App. 2d at 793-94.
When the legislature chose to change public policy, Koehns foundation collapsed, as the decisions in Feldt and Bell acknowledge. See 240 Kan. at 111 (“It is obvious the legislature chose to reject the common-law [and minority] rule.”); 15 Kan. App. 2d at 793 (“The Koehn rule has been rejected as the public policy of this state.”). “Under the constitution the Legislature is charged with statutorily enunciating public policy.” 240 Kan. at 112. Because Koehn’s rule was based on public policy, which the legislature has changed, Koehn has effectively been invalidated.
More recently, the United States District Court for the District of Kansas found receipt of notice “immaterial” under Kansas law and applied Feldt’s analysis to nonrenewals for failing to pay premiums.
“Although it is unclear whether Defendants dispute drat Briggs received the Notice, receipt of the notice is immaterial under Kansas law. The Kansas Supreme Court has unambiguously held that ‘for a motor vehicle liability insurance policy to be effectively terminated, the insurer need only mail notice of termination by certified or registered mail or United States Post Office certificate of mailing to the insured at the last address provided by the insured.’ The court continued by noting that ‘[t]he statute clearly does not require the insurer to provide proof of actual receipt by tire insured.’ Although Feldt dealt with the cancellation of an insurance policy, the court gave no indication that it would treat non-renewal differently. Moreover, the statute addresses ‘termination by failure to renew,’ and there is no reason for this Court to construe that language differently. Accordingly, the Notice was valid to effect non-renewal on September 3, 2008, when it was mailed by Nationwide on June 27, 2008.” Nationwide Mut. Ins. Co. v. Briggs, No. 11-CV-2119-JTM-D]W, 2012 WL 928088, at “4 (D. Kan. 2012) (unpublished opinion), aff'd 555 Fed. Appx. 799 (10th Cir. 2014) (unpublished opinion).
D. Viability of Koehns public policy analysis
But the cases cited above all involved motor vehicle liability insurance policies. Arnold argues that Koehn still controls this property casualty insurance case because the court declared in Koehn a broad public policy covering all types of insurance and the legislature changed that public policy in K.S.A. 40-3118(b) solely as to motor vehicle liability insurance. See 187 Kan. at 202-03. Arnold notes that although other Kansas statutes permit mailing of various notices to the insureds last known address—see, e.g., K.S.A. 40-1015 (cancellation of mutual fire and tornado insurance), K.S.A. 40-435 (group life insurance policy members entitled to notice of eligibility for individual policy of life insurance), no statute authorizes notice by mail for cancellation of property casualty insurance policies.
We are unpersuaded. First, Arnolds premise that Koehn declared a broad public policy covering all types of insurance is too broad. Arnold cites no case applying Koehns public policy rationale outside the context of motor vehicle liability insurance, and its language seems to limit its analysis to that kind of policy. See, e.g., 187 Kan. at 202 (“‘Clearly the object of the insured when he buys a policy of the kind involved here . . . [Emphasis added.]); 187 Kan. at 203 (finding “a policy strongly favoring the protection of the public in the field of liability insurance coverage for motor vehicle owners” [Emphasis added.]).
Second, in the context of what type of notice is required to cancel an insurance policy, we find no meaningful difference between motor vehicle liability insurance and property casualty insurance. Why would our public policy reflected in our statutes find mailing of cancellations to be sufficient notice for motor vehicle liability insurance policies but insufficient notice for property casualty insurance policies? Arnold suggested at oral argument that the difference may be because motor vehicle liability insurance is required by law for all vehicles and property casualty insurance is not required for all homeowners. But we find no good reason why that fact, even if true, would warrant a different public policy rationale.
We note that the Tenth Circuit Court of Appeals has not hesitated to apply Feldt’s rule, which rejected Koehns rule, outside the context of motor vehicle liability insurance. In Federal Kemper Life Assur. Co. v. Ellis, 28 F.3d 1033, 1039-40 (10th Cir. 1994), the plaintiff alleged the insurer had breached its contractual obligations to properly send premium due notices and lapse of policy notice. The Tenth Circuit held that under Kansas law, an insurer had no duty to ensure defendant actually received such notices for a fife insurance policy, but only a duty to mail the notices to the defendants address:
“Defendant next contends that a genuine issue of material fact exists whether the March 1990 notice was mailed in compliance with the contract. Kemper had no duty to ensure defendant actually received the notice, but only to mail the notice to the defendant’s address. See, e.g., Feldt v. Union Ins. Co., 240 Kan. 108, 726 P.2d 1341, 1343 (1986) (interpreting automobile liability insurance statute that requires only mailing of notice); Bell v. Patrons Mut. Ins. Ass’n, 15 Kan.App.2d 791, 816 P.2d 407, 408-09 (1991) (where policy provided that it could be cancelled by mailing notice to the named insured, court found that proof of mailing was sufficient; contract unambiguously required only mailing). Thus, the district court need only have determined if there was a material issue of fact whether the notice was mailed. ” Federal Kemper Life Assur. Co., 28 F.3d at 1039-40.
We would thus not be the first court to apply Feldt and Bell outside the context of motor vehicle policies.
E. Canons of Contract Construction
Most importantly, basic rules of contractual interpretation compel our conclusion.
“The rationale upon which the courts adhering to tire [majority] rule base their holding is that the express terms of the contract uphold the sufficiency of a notice deposited in the mail, and that such provision, being unambiguous, must be en forced by the courts as written. It is said that where there is no statute upon tire subject, the parties to the contract of insurance may agree as to the form and manner in which notice of cancellation shall or may be given; that when the parties to the contract have so agreed, they are both bound thereby, and the courts will not attempt to rewrite the contract for them nor interpolate the conditions which cannot be reasonably implied; and that when a cancellation notice is given in the manner provided in the policy, it constitutes sufficient notice, thereby canceling the policy and relieving the insurer from liability for any loss occurring thereafter. It is said that the parties, by their contract, in effect constitute the government, in its business of operating the mails, tire agent of the insured for the purpose of receiving the notice of cancellation.” Koehn, 187 Kan. at 196-97.
Koehn, decided in 1960, rejected that majority rationale, stating: “[Tjhis is, of course, a fiction.” 187 Kan. at 197.
Later Kansas Supreme Court cases routinely gave full credence to the very canons of contract construction that Koehn dismissed as “fiction.” See, e.g., Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005, 974 P.2d 569 (1999) (when language of contract is clear and unambiguous, courts must give effect to the expressed intent of parties and enforce the contract as written); Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978) (a court may not rewrite contract or make new contract for parties under guise of construing agreement); Lauck Oil Co. v. Breitenbach, 20 Kan. App. 2d 877, 879, 893 P.2d 286 (1995) (when contract is unambiguous, courts “function is to enforce the contract as made” and “not [to] malee another contract for the parties”). We do the same.
The policy's cancellation provision was straightforward, clear, and unambiguous. It states:
“Notice of Cancellation or Nonrenewal: We will address the cancellation or nonrenewal notice to your address shown in the policy. Under the authority of federal law, die United States Postal Service and its authorized agents or vendors may forward the cancellation or nonrenewal notice to an updated address per any change of address that you have presented to or filed with the United States Postal Service. If notice is mailed, proof of mailing will be sufficient proof of notice.”
The plain language of this policy unambiguously provides that if notice is mailed, proof of mailing is sufficient proof of notice. We are not at liberty to rewrite the contract to require more. Because the Koehn rule has been invalidated by Feldt, our state’s public policy does not require a policyholder to have actual notice of the cancellation of an insurance policy. See 240 Kan. at 111-12.
To show that this contractual provision is void as against public policy, Arnold has the burden to show that the notice provision in question is arguably injurious to the interests of the public or contravenes some established interest of society.
“ ‘ “Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts which are lawful and which contravene none of its rules shall be enforced, and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless injurious to the interests of the public or [it] contravenes some established interest of society [citation omitted]. Illegality from the standpoint of public policy depends upon tire facts and circumstances of a particular' case [citation omitted], and it is the duty of courts to sustain the legality of contracts where possible [citation omitted]. There is no presumption that a contract is illegal, and the burden of showing the wrong is upon him who seeks to deny his obligation thereunder. The presumption is in favor of innocence and the taint of wrong is a matter of defense [citations omitted].”’ Frazier, 296 Kan. at 749 (quoting In re Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 [1960]).” In re Marriage of Truster, 301 Kan. 88, 104-05, 339 P.3d 778 (2014).
Arnold makes no public policy argument except that based on Koehn, so he fails to meet this burden. He has shown no compelling public policy of Kansas that could invalidate the contractual notice provision contained in this policy.
As the parties agree, no specific statute or regulation in Kansas pertains to the notice required to cancel property casualty insurance. Therefore, Foremost had to give only the notice required by the policy. According to the policy, proof that Foremost mailed the cancellation notice to Arnold at the address shown in tire policy was sufficient to prove that Arnold had notice of the policy’s cancellation. Arnold does not allege that a material question of fact remains as to whether Foremost correctly addressed, stamped, or mailed the notice. Thus, under the policy and under Kansas law, the notice is presumed to have been received by the addressee. See State v. Hershberger, 27 Kan. App. 2d 485, 495-96, 5 P.3d 1004 (citing State v. Campbell, 24 Kan. App. 2d 553, 556, 948 P.2d 684, rev. denied 263 Kan. 887 [1997]), rev. denied 269 Kan. 937 (2000). Arnold neither argues that this presumption was rebutted nor points to facts arguably sufficient to rebut this presumption.
Based on the undisputed facts, Foremost complied with the notice requirements of the insurance policy. Therefore, Arnold is deemed to have had sufficient notice of the policy's cancellation even if he never actually saw it.
II. Did Foremost have a duty to follow up with Arnold?
Arnold next claims that summary judgment was inappropriate because a factual question remained whether Foremost breached its duty to “follow up on an un-negotiated refund check.” Arnold vaguely asserts that Foremost should have contacted him after an unstated period of time when Foremost knew or should have known that Arnold had not cashed the refund check. Arnold s brief claims a “duty of reasonable care” arises from the insurance policy and from the industry standards of property casualty insurance.
At oral argument, Arnold shifted his argument to claim that the duty Foremost breached was the duty of good faith and fair dealing, which is inherent in nearly every contract. See Estate of Draper v. Bank of America, N.A., 288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009). But Arnold did not brief this issue, so we find it waived and abandoned, even if it was raised in oral argument. See Feldt, 240 Kan. at 112. Accordingly, we decline to address the alleged breach of the duty of good faith and fair dealing, and we examine solely the issue briefed—whether Arnold presented a genuine issue of material fact that Foremost had a “duty of reasonable care.”
A. Standard of Review
We apply the same summary judgment standard of review set forth above. See Bergstrom, 266 Kan. at 871. Further, whether a duty exists is a question of law; thus, this courts review is unlimited. Berry v. National Medical Services, Inc., 292 Kan. 917, 920, 257 P.3d 287 (2011).
B. Existence of duty
Arnold first contends Foremost’s duty of reasonable care “stems from the contract between the insurer and the insured.” But Arnold does not point to any language in the policy that even argu ably requires Foremost to follow up after it has mailed a refund check. As discussed, the cancellation terms in Arnolds insurance policy were straightforward, clear, and unambiguous. The policy specifically described the requirements that Foremost had to comply with when canceling the policy, and the undisputed facts show that Foremost complied with those requirements. Further, Arnold admitted in his summary judgment motion and in his response to Foremost’s motion that the policy did not include “a provision requiring [Foremost] to inquire regarding the un-negotiated refund check.” Because no facts show the insurance policy itself may have expressly or impliedly imposed on Foremost a duty to follow up, Foremost’s failure to do so does not prevent summary judgment on this unusual breach of contract claim.
Arnold next contends that industry standards of property casualty insurance created a duty to follow up. But Arnold does not show that industry standards can create legal duties or which industry standard arguably could have created such a duty here. Nor does he cite any authority in support of this assertion, so we find it has not been properly briefed. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) (stating an argument unsupported by pertinent authority is deemed waived and abandoned).
Arnold mentions, but does not argue error in, the district court’s denial of his request to obtain an expert to determine whether Foremost’s delay in following up on the uncashed refund check was unreasonable or contrary to industry standards. We consider only those issues which Arnold has briefed and not those he has merely mentioned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Because no claim of error is made in this regard and no proffer is included in the briefs, we find no facts precluding the entry of summary judgment. Accordingly, Arnold has not raised a material question of fact regarding industry standards’ creation of a duty.
Finally, Arnold seems to suggest that the district court could have sua sponte found that Foremost had some duty to follow up, citing Bussell v. Braden, 42 Kan. App. 2d 811, Syl. ¶ 2, 217 P.3d 997 (2009). In Russell, we found a parent has a duty to control a child to prevent injury to third persons, based on Kansas’ adoption of a specific provision of the Restatement (Second) of Torts. But Arnold does not point to any tort or contract-based law that supports imposing any duty on an insurer to follow up in any manner on an uncashed refund check. Russell certainly fails to do so. Following up may be a good business practice, but nothing in Kansas law requires drat an insurance company do so. We find no error in die district court’s ruling that Arnold failed to raise a genuine issue of material fact that Foremost had a duty to follow up on the uncashed refund check.
Accordingly, we affirm the district court’s grant of summary judgment in favor of Foremost.
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The opinion of the court was delivered by
Biles, J.:
Olin L. Coones was convicted of first-degree premeditated murder for killing Kathleen Schroll, with whom he had an ongoing civil dispute over an inheritance. The key evidence was testimony that Kathleen called her mother in a panic about 10 minutes before police discovered her body to say that Coones was in the house to kill her and her husband.
Coones raises four challenges to his conviction; (1) ineffective assistance of trial counsel; (2) erroneous admission of hearsay testimony concerning a confrontation between Coones and Kathleen a few days before the murder; (3) prosecutorial misconduct; and (4) cumulative error. We affirm the conviction.
Coones also challenges the constitutionality of his hard 50 sentence, which was imposed under K.S.A. 21-4635, as violating his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. We vacate the hard 50 sentence as required by Alleyne v. United States, 570 U.S _, 133 S. Ct. 2151, 2155, 2160-63, 186 L. Ed. 2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014) (K.S.A. 21-4635 violates Sixth Amendment because it permits judge to find by preponderance of the evidence existence of aggravating factor necessary to impose increased mandatory minimum sentence, rather than requiring a jury to make that finding beyond a reasonable doubt). We remand the case to the district court for resentencing.
Factual and Procedural Background
Coones was charged with the first-degree premeditated murder of Carl and Kathleen Schroll, who were discovered dead in their home on April 7, 2008, at around 2:30 a.m. There were no signs of a struggle, and nothing was stolen. Kathleen died from a gunshot wound to the back of her head. Carl died from two gunshot wounds to the chest.
A cordless phone and a revolver were found lying near Kathleen’s body. Her daughter said she had seen the gun in her mother’s purse previously. Kathleen’s DNA was found inside the barrel and on the trigger. The bullets located in the bodies were from the same caliber gun, but too deformed to establish they were fired from that revolver.
Coones was tried twice. In the first trial, he was acquitted of Carl’s murder and convicted of Kathleen’s. The district court granted a motion for new trial on the conviction because the State did not timely disclose computer evidence to the defense.
At his second trial, Coones was represented by the same attorney, Patti Kalb. The same prosecutor tried die State’s case, and the same district court judge presided. The record does not contain a written stipulation, but both attorneys indicated they had agreed to retry the case based on the evidentiary rulings from the first trial. For the most part, die same evidence was admitted at the second trial. The exception was some additional computer evidence Coones presented about his computer usage the night of the murders.
Kathleen’s modier, Elizabeth Horton, testified she was awakened by a phone call at 2:21 a.m. the night Kathleen died. Elizabetii looked at the caller ID and recognized Kathleen’s home phone number. She also recognized Kathleen’s voice based on their daily phone conversations and because the caller said, “Mom.” Kathleen told Elizabeth that Coones was “in the house and he said he is going to kill Carl. He said he is going to kill me, and he said he has his tracks covered so no one else will know who did it.” Kathleen repeated that statement and said she had not called the police. Then, the line went dead. Elizabeth told her son, Randy Horton, what Kathleen said. Randy called 911.
An officer arrived at the Schrolls’ home about 10 minutes later. When entering the house, police found Kathleen and Carl dead. Kathleen’s body was lying on her back in tire entryway, and Carl was in a bedroom.
Photographs of the mother’s caller ID screen were admitted at trial. It showed an incoming call at 2:21 a.m. on April 7, and identified the originating phone number as the victims’ home phone number and the caller as “Schroll, Carl.” But the mother’s phone records listed a different originating phone number and did not reflect Randy’s outgoing 911 call. These discrepancies are discussed in more detail later.
A recording of Randy’s 911 call was played for the jury. On it, Randy informed the 911 operator that Kathleen had just called and said Coones was at Kathleen’s house “breaking in with a gun in his hand.” As the operator questioned Randy, Elizabeth can be heard relaying information in the background. Randy described Kathleen’s phone as going dead.
The State’s theory for motive was that Coones was angry because he believed Kathleen, who had been his father’s caretaker, had been stealing from his father and exercised undue influence to inherit part of his father’s estate. Consistent with that theory, the prosecution presented evidence that Kathleen and Coones had prior confrontations. Elizabeth testified she spoke with Kathleen about Coones “practically eveiy day. Every time something new came up with him, [Kathleen] called [Elizabeth] immediately.” Elizabeth said Coones would drive past Kathleen’s home and that he “moved close to where she lived and drove past a lot.”
Blair Hadley, Kathleen’s daughter, testified over Coones’ objection that she was riding with Kathleen the day before the killings and drove past a QuikTrip. Kathleen told Hadley she had passed Coones on her way into QuikTrip the day before, i.e.,2 days before she was killed. Hadley further testified that her mother said Coones told her, “You are not going to be spending no more of my dad’s money, bitch.” Coones denied that a confrontation occurred, and a detective conceded that neither Kathleen nor Coones appeared on the store’s security video.
Coones presented an alibi defense and advanced his own theory that Kathleen killed Carl in a murder-suicide. Regarding the alibi, Coones offered his family’s testimony about his activity the night of the murders. His wife testified that Coones came to bed while their daughter and her fiancé were watching television. She said Coones only left the room once to go to the bathroom. She testified she heard him on the computer a few times during the night. Information from Coones’ computer established that someone logged in under his profile and conducted internet searches at 1:07 a.m., and 4:51 a.m., which left a gap in activity during the time of the murders.
Coones’ daughter and her fiancé testified they were watching a movie in the living room until 2:30 or 3 a.m. The daughter said Coones left the bedroom to go to the bathroom at around 2:30 a.m. and returned to the bedroom. The fiancé and Coones’ wife both testified Coones would have had to pass the living room to leave the house.
Regarding his murder-suicide theoiy, Coones called a forensic scientist, Gene Gietzen, who testified that the velocity of blood spatter found at the victims’ home could not eliminate the possibility that Kathleen took her own life. Gietzen was also critical of the evidence collected and tested by the State. He said the State could have tested biological tissue found on Kathleen’s ring to determine whether it belonged to her, and gunshot residue collection ldts could have been tested to reveal whether residue was present.
The jury convicted Coones of first-degree premeditated murder for Kathleen’s killing. His attorney, Kalb, filed a motion for judgment of acquittal and a motion for new trial. While those motions were pending, Kalb withdrew. Coones’ new counsel filed a second motion for new trial, which alleged Kalb’s performance fell below an objective standard of reasonableness.
The district court held an evidentiary hearing limited to whether Kalb’s performance was deficient. The court indicated it would hold a second hearing on whether Coones was prejudiced by his attorneys performance if it found deficient performance. The court ruled Kalb’s efforts did not fall below an objective standard of reasonableness and then denied the remaining issues for a new trial.
At sentencing, the State sought a life sentence with a mandatory minimum of 50 years’ imprisonment. The district court agreed and imposed the hard 50 sentence after finding Coones engaged in conduct that caused a great risk of death to more than one person and committed the crime in an especially heinous, atrocious, and cruel manner.
Coones directly appeals to this court, which has jurisdiction under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence). •
Ineffective Assistance of Counsel Claims
Coones contends Kalb was ineffective because she failed to: (1) object to Elizabeth’s testimony regarding the phone call from Kathleen; (2) challenge the caller ID evidence indicating the call came from Kathleen and Carl’s home telephone number; (3) secure an expert on caller ID spoofing; (4) give the defense expert the crime scene video; and (5) cross-examine police investigators on their failure to test Kathleen’s hands for gunshot residue. Coones acknowledges this last claim was not raised in the motion for new trial.
Standard of review
Ineffective assistance of counsel issues involve mixed questions of law and fact. An appellate court reviews the district court’s factual findings for substantial competent evidence and its legal conclusions de novo. Miller v. State, 298 Kan. 921, 928, 318 P.3d 155 (2014). When faced with an ineffective assistance of counsel claim raised in a motion for new trial and upon which the district court has held an evidentiary hearing, this court on review applies tire standards articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). See State v. Brooks, 297 Kan. 945, 948-49, 305 P.3d 634 (2013); State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011).
The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that the accused shall enjoy the right to have the assistance of counsel for his or her defense. To be meaningful, the right to counsel guaranteed by this provision necessarily includes the right to effective assistance of counsel. This right is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution. State v. Cheatham, 296 Kan. 417, 429-30, 292 P.3d 318 (2013).
To prove he received ineffective assistance of counsel Coones must demonstrate: (1) His counsel’s performance was deficient; and (2) this deficient performance was prejudicial. 298 Kan. at 929 (citing Strickland, 466 U.S. at 687). “Deficient performance” means “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 687. In applying this test,
“[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation omitted.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation omitted.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation omitted.]” Strickland, 466 U.S. at 689.
In this case, the district court limited the evidentiary hearing and subsequent ruling to the deficient performance prong. But in his appeal, Coones argues both deficient performance and preju dice. The State argues this court should affirm the district court’s conclusion Kalb was not deficient but in the alternative suggests that if we disagree the correct remedy is to remand for a hearing on the prejudice analysis. We hold that Kalb was not deficient, rendering the prejudice analysis moot.
Counsel not deficient for failing to object on Confrontation Clause grounds
Coones claims Kalb was ineffective by not objecting to the mother’s statements about the telephone call with Kathleen. He argues those statements are testimonial hearsay, admission of which is prohibited by the Sixth Amendment right to confront witnesses. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2003) (holding Sixth Amendment prohibits use of testimonial statements of unavailable witnesses unless defendant had prior opportunity to cross-examine witness). He does not assert any issue under the Kansas hearsay statute, K.S.A. 2013 Supp. 60-460, or address that statute’s potential applicability.
Kalb testified she did not object to this testimony because she believed it was admissible since Kathleen was deceased. She also testified she believed the testimony was admissible under the Confrontation Clause. This claim is easily addressed by determining whether the evidence was admissible.
The admissibility of Elizabeth’s testimony about Kathleen’s telephone call to her hinges on a straightforward application of the Confrontation Clause. This court has previously noted that “[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.” State v. Bennington, 293 Kan. 503, 510, 264 P.3d 440 (2011) (quoting Giles v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 171 L. Ed. 2d 488 [2008]). Determining whether a statement is testimonial is a “highly context-dependent inquiry,” the purpose of which is to determine “whether the statement was made for creating an out-of-court substitute for testimony.” 293 Kan. at 516-17.
In performing this inquiry, the court conducts an objective analysis of the circumstances of the declarant’s statements, “consider ing such factors as whether tire interrogator was a State actor or agent, whether there was an ongoing emergency, whether the encounter was formal, and whether the statements and actions of [the declarant and interrogator] reflect a prosecutorial purpose.” 293 Kan. at 516; see also State v. Brown, 285 Kan. 261, 291, 173 P.3d 612 (2007) (setting out four-part test considering whether objective witness would reasonably believe statement would be used for later prosecution; whether interrogator was law enforcement or other government personnel; whether proof of facts relevant to later prosecution was primary purpose of interview; and whether interview was part of government investigation).
An objective evaluation of the circumstances here leads to the conclusion that Kathleen’s statements were not testimonial and admission of the statements into evidence does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution as applied in Crawford, 541 U.S. at 68. Reasonable participants would not have viewed the primaiy purpose of the telephone call as preserving evidence for a later prosecution. See State v. Miller, 284 Kan. 682, 713, 163 P.3d 267 (2007) (statements by another to witness while at witness’ home regarding both women’s involvement with defendant nontestimonial because not made in presence of police officers or other authorities, were made during emotional conversation between the women, and were not subject to formalities and procedures otherwise associated with testimonial hearsay).
Kathleen did not make the statement at issue to law enforcement or another agent of the state, but to her mother. The call was not part of a government investigation. And there were no formalities associated with it. Additionally, Kathleen was speaking about an ongoing emergency: An intruder was inside her home and she was in immediate danger. Because this evidence would not have been excluded on Confrontation Clause grounds, Kalb’s failure to contemporaneously object to it on this basis was not objectively unreasonable.
Counsel not deficient regarding caller ID evidence
Coones criticizes Kalb’s performance as to the caller ID evidence on two fronts: failing to object to admission of photographs of Elizabeth’s caller ID display and failing to pursue an expert opinion on “call spoofing.”
As to the failure to object, Coones argues that trial counsel was ineffective because “had [she] objected to the lack of foundation because it was not reliable based on the discrepancy between the caller ID screen and the phone records, at the very least, the issue would be preserved for appellate review.” Coones appears to contend the foundation to admit the evidence was insufficient because the telephone records did not reflect what the caller ID displayed. He relies on State v. Schuette, 273 Kan. 593, 597-98, 44 P.3d 459 (2009), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Coones also argues the caller ID evidence was inadmissible hearsay.
Foundation evidence of a caller ID device’s reliability is necessary for admission. See Schuette, 273 Kan. at 598. In Schuette, satisfactory foundation was laid from evidence that the defendant called a particular number when die defendant’s name and telephone number appeared on the caller ID display, and witnesses who participated in the telephone call testified they knew and recognized the defendant’s voice and identified the defendant as the caller. 273 Kan. at 598. The same foundational evidence is in the record here.
The mother testified she knew Kathleen’s voice and recognized it as the voice of the person who called her. In addition, Carl’s name and telephone number appeared on the caller ID display. Coones was free to attack the weight of this evidence, as he did, with evidence of the discrepancy between the number displayed on the machine and the number listed in the business records for the call. But the discrepancy did not render the caller ID evidence inadmissible.
Coones’ cursory argument that the caller ID display is inadmissible hearsay also lacks merit. See K.S.A. 2013 Supp. 60-460 (“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible” unless an exception applies.). This court has previously held the readout on the caller ID display is not hearsay because it “is not the output of statements from an out-of-court declarant but merely the result of the device’s operations.” 273 Kan. at 598.
Because there was evidence of the caller ID’s reliability and because the caller ID evidence was not hearsay, Kalb was not ineffective for failing to object to the evidence on foundation and hearsay grounds.
Coones next argues Kalb’s performance was deficient because she failed to secure an expert witness on “call spoofing.” He claims she should have “secured an expert to look into whether this was a call spoofing situation, and to explain his or her findings to tire jury.” We disagree.
At trial, the State had a detective read AT&T’s disclaimer, which indicated “[AT&T] do[es] not maintain records of all incoming and local calls for all subscriber’s account . . . the absence of a record of such a call will not be conclusive as to whether any call was or was not placed or received.” The detective also read the following information about calls made from another carrier:
“When another carrier or telecommunications company is the originator of a phone call they do not always pass the telephone number to our switch. We are unable to capture the phone number in these cases. These types of calls may appear on the report in two different ways.”
The report then provides two examples of phone number formats, neither of which is consistent with the number from which the report indicates the 2:21 a.m. phone call originated.
At the hearing on Coones’ motion for a new trial, Kalb testified she did not hire an expert because, after researching call spoofing, she determined it was not vital to Coones’ case. Additionally, she was concerned that upon digging further into the issue she would discover “more proof that it was, in fact, a true phone call.”
In Strickland, the court explained:
“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support tire limitations on investigation. In other words, counsel has a duty to malee reasonable investigations or to make a reasonable decision that makes particular investigations unnecessaiy. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments.” Strickland, 466 U.S. at 690-91.
The decision to forgo further inquiry into the possibility the call did not originate from Carl and Kathleen’s home telephone number was not objectively unreasonable. Kathleen’s statements to Elizabeth were the State’s primary evidence against Coones. Kalb made a tactical decision based on the possibility that additional investigation into the discrepancy between the AT&T phone records and the caller ID would further confirm the call’s authenticity. With evidence of irregularities in AT&T’s telephone records before the jury, Kalb remained free to raise the issue whether the caller ID evidence was reliable without adding additional strength to the prosecution’s case. This claim is without merit.
Counsel not deficient regarding crime scene video shotoing blood splatter
At the hearing on the ineffective assistance claims, Kalb testified but the defense blood expert did not. The district court found that the crime scene video was listed in the detective’s reports and that Kalb was aware of it and had recalled speaking with the expert about it. The court further found there was nothing in the video any different from the crime scene photographs introduced into evidence and used by the expert in his testimony.
In his brief, Coones claims “the district court erroneously held that Kalb had shown the video to the defense’s expert witness.” He then goes on to assert that this holding is not supported by substantial competent evidence. But this distorts what the district court found. The court’s ruling was:
“The crime scene video was listed in tire reports of the detective. Ms. Kalb was aware of it. It’s her recollection that she spoke with her expert about it. I don’t know—I’ve never seen anything that it showed other than—that was any different from what the photographs showed. As I say, her recollection is that she shared it with the expert. He, according to counsel, has indicated otherwise. But he didn’t testify to that here in court. I don’t believe that her not showing it to him constituted ineffective assistance of counsel.” (Emphasis added.)
As is readily apparent, the statement that defense counsel “shared it with the expert” is actually a reference to Kalb discussing the video’s existence with the expert—not showing it to him. This is even clearer in view of the court’s actual ruling on the deficient performance claim, which was based on the court’s factual determination that counsel did not show the video to the expert.
At the hearing, Kalb testified that she and the expert knew about the crime scene video, but the expert “didn’t seem to feel it was necessary” to view the tape. She conceded she did not insist that he view it. Substantial competent evidence supports the district court’s finding that counsel did not show the video to the expert.
As a practical matter, the question presented is whether Kalb did enough to prepare the expert witness for trial. Kalb testified that she and the expert took the police crime scene photos back to the Schrolls’ home to match the photos with the physical location where they were taken and that this was adequate for their purposes. Moreover, Kalb’s undisputed testimony establishes that the expert was aware of the video’s existence, and there is no evidence that the expert requested the video and Kalb failed to provide it. See Mickey v. Ayers, 606 F.3d 1223, 1246 (9th Cir. 2010) (no deficient performance in failing to provide tape of defendant’s police interview to expert when expert did not claim he ever requested better version of transcript); Card v. Dugger, 911 F.2d 1494, 1512 (11th Cir. 1990) (no deficient performance in failing to provide certain records to mental health experts when no indication experts felt incapable of basing conclusions on information to which they had access).
The claim that Kalb was deficient for failing to provide the exime scene video to the expert witness is without merit.
Gunshot residue testing
Coones argues for the first time on appeal that Kalb’s performance was deficient because she failed to cross-examine police investigators on the failure to test Kathleen’s hands for gunshot residue. This argument is premised on a defense expert’s testimony at the ineffective assistance of counsel hearing that Kalb could have “cross-examine[d] a crime scene officer or a lead detective about the failure to take a step such as the failure to obtain gunshot residue analysis” and this expert’s conclusion that Kalb’s perform- anee was deficient because she failed to conduct cross-examination about residue “considering the defense theory.”
But counsel at the hearing made no specific argument concerning this and the district court made no findings regarding the alleged failure to cross-examine police personnel about gunshot residue because that claim was not before it. The State argues this claim is not preserved because it was not specifically raised below, except in passing.
Normally, ineffective assistance of counsel claims are not reviewed until the district court has had an opportunity to conduct an evidentiary hearing. State v. Williams, 299 Kan. 1039, 1048, 329 P.3d 420 (2014). But in this case, the record quickly dispels the argument.
At trial, Kalb elicited testimony from one of the lead detectives in the case that police failed to conduct gunshot residue testing bn Coones and the victims. And Coones’ expert witness testified gunshot residue ldts were collected and police could have tested them to determine whether Kathleen had gunshot residue on her hands. Kalb also referenced this omission during closing arguments and noted die defense expert could not eliminate the possibility that Kathleen shot herself in the head. Kalb stated, “They didn’t do gunshot residue tests on her hands or Carl’s. They didn’t do any of the tests necessary.”
Coones seems to argue Kalb’s performance was deficient because she did not argue this point more forcefully, but the jury was clearly apprised of these facts. Coones’ claim lacks merit.
The QuikTrip Testimony
Coones next argues the district court erred by admitting testimony about Kathleen’s account of her convenience store encounter with Coones. He contends the evidence was inadmissible double hearsay and, even if it was not, it was irrelevant and the potential for undue prejudice outweighed the evidence’s probative value.
Standard of review
A district court’s decision to admit or exclude evidence is assessed using a three-step standard of review. First, tire court ad dresses whether the evidence in question is relevant. State v. Reed, 300 Kan. 494, 508-09, 332 P.3d 172 (2014). Relevant evidence is that which has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
Relevance has two elements: probative value and materiality. State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013). Evidence is probative if it furnishes, establishes, or contributes toward proof. Probativity is reviewed for abuse of discretion. Evidence is material if it tends to establish a fact that is at issue and is significant under the substantive law of the case. Materiality is reviewed de novo. 297 Kan. at 142. Second, the court reviews de novo what rules of evidence or other legal principles apply. Finally, the court applies the appropriate evidentiary rule or principle. Review of the district court’s application of evidentiary rules depends on the rule applied. Reed, 332 P.3d at 183.
The convenience store testimony was relevant.
Coones argues the evidence was not relevant because it did not tend to prove a material fact at issue in his trial. He argues that the idea Kathleen would not spend any more of his dad’s money was not disputed because it was “just a matter of time” before criminal charges and civil suits would result in “justice for his father.” In addition, though not presented specifically as a probativity argument, Coones contends the confrontation was capable of being viewed as a threat in hindsight, but could also have been a reference to the civil litigation between Coones and Kathleen. He points out there are “different ways” Kathleen could have been prevented from spending the money.
The State argues the evidence was relevant to prove plan, intent, motive, and premeditation. It argues if a person threatens and then carries out an act, the threat is evidence of plan and intent. It further argues when a threat includes the reason, the threat is evidence of motive.
“From early times this court has held that evidence of threats by an accused against the deceased is admissible as bearing on intent and state of mind.” State v. Anicker, 217 Kan. 314, 316, 536 P.2d 1355 (1975). Additionally, “[pjremeditation may be inferred by the jury from various circumstances, including . . . threats and declarations of the defendant before and during the occurrence.” State v. Holmes, 278 Kan. 603, 632-33, 102 P.3d 406 (2004) (citing State v. Decker, 275 Kan. 502, Syl. ¶ 5, 66 P.3d 915 [2003]).
“If a prior threat was made against a deceased victim, that evidence is properly admitted to show intent and motive. [Citation omitted.] ‘If the threat was against a class of persons to which the deceased belonged, it would be admissible on the question of defendant’s actions. ... In addition, the threat might be admissible because of the relationship between die defendant and the deceased under the circumstances of the case.’ [Citation omitted.]” State v. Tyler, 251 Kan. 616, 630-31, 840 P.2d 413 (1992) (defendant’s general threat to “take someone out” if someone tried to arrest him admissible at trial for murder of police officer).
Coones’ statement during the confrontation with Kathleen was both material and probative and, therefore, relevant. The jury is charged with determining how to interpret the statement. One reasonable interpretation is that it was a threat, which tended to prove tire killing was intentional and premeditated—both material facts at issue in the case. It also unequivocally conveyed Coones’ desire to prevent Kathleen from further enjoyment of assets she received from Coones’ father.
Testimony was admissible
Finally, Coones argues the evidence was inadmissible double hearsay and the district court erroneously admitted it. He argues there was insufficient evidence before the district court to support application of the hearsay exceptions advanced by the State at trial. The State argues Kathleen’s statements to Hadley were admissible as statements of an unavailable witness under K.S.A. 2013 Supp. 60-460(d)(3) and that Coones’ statement was admissible either as a declaration against interest under K.S.A. 2013 Supp. 60-460(j) or as a party admission under K.S.A. 2013 Supp. 60-460(g).
As a threshold matter, Coones also complains the trial court failed to make the findings necessaiy to apply the hearsay exceptions advanced by the State. And the record establishes that the district court did not explain the basis for admitting the statements, but the district court’s silence on the reasoning supporting its ruling does not bar review because the required findings are implied. See State v. Summers, 293 Kan. 819, 828, 272 P.3d 1 (2012) (affirming district court’s application of hearsay exception, despite defendant’s claim district court failed to explicitly make required finding statement was made in good faith).
The parties agree both Coones’ statement and Kathleen’s statement relating it to Hadley were out-of-court statements offered to prove the truth of tire matters stated. Unless one of several exceptions are met, “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible.” K.S.A. 2013 Supp. 60-460. “A statement within the scope of an exception . . . shall not be inadmissible on the ground that it includes [another hearsay statement] if such included statement itself meets the requirements of an exception.” K.S.A. 60-463.
A district court’s determination that hearsay is admissible under a statutory exception is reviewed for abuse of discretion. Summers, 293 Kan. at 827; State v. Davis, 283 Kan. 569, 573, 158 P.3d 317 (2006).
At trial, the State argued Coones’ statement satisfied the declaration against interest exception defined in K.S.A. 2013 Supp. 60-460(j). But the ambiguity of Coones’ statement to Kathleen likely renders this exception inapplicable. It is unclear how, construed literally, the message that Kathleen would not spend any more of Coones’ father’s money could be contrary to Coones’ pecuniary interest; subject him to civil or criminal liability; or risk making him an object of hatred, ridicule, or social disapproval, to the extent a reasonable person would not have said it unless he or she believed it to be true. See K.S.A. 2013 Supp. 60-460(j); see, e.g., State v. Bird, 238 Kan. 160, 174, 708 P.2d 946 (1985); State v. Prince, 227 Kan. 137, 146-47, 605 P.2d 563 (1980).
But there are other grounds to demonstrate tire trial court reached the right result. First, K.S.A. 2013 Supp. 60-460(g) addresses party admissions: “As against a party, a statement by the person who is the party to the action in the person’s individual or a representative capacity and, if the latter, who was acting in such representative capacity in making the statement.” Coones’ statement fits this exception because Coones was a party to the criminal action. See State v. Williams, 268 Kan. 1, 11, 988 P.2d 722 (1996).
Second, Kathleen s account of the convenience store confrontation was admissible under the hearsay exception defined in K.S.A. 2013 Supp. 60-460(d). Kathleen was unavailable as a witness because she was deceased. Having been made the day after her encounter with Coones, the statement was made when the encounter was recently perceived by Kathleen and while her recollection was clear. See State v. Robinson, 293 Kan. 1002, 1026, 270 P.3d 1183 (2012). Kathleen’s statement was necessarily made before the commencement of Coones’ murder trial, and there is no evidence Kathleen had incentive to falsify or distort it when she related it to her daughter in casual conversation. See Robinson, 293 Kan. at 1026 (concluding condition met when there was “no suggestion [tire] statements were not made in good faith or were made with an incentive to falsify or distort”); State v. Johnson, 255 Kan. 140, 151, 871 P.2d 1246 (1994) (condition met when record revealed no evidence of murder victim’s incentive to falsify or distort cries for help during murder).
Each out-of-court statement containing this testimony satisfied an exception to the general exclusionary rule of K.S.A. 2013 Supp. 60-460. Coones’ statement to Kathleen was admissible under K.S.A. 2013 Supp. 60-460(g), and Kathleen’s statement to her daughter, in which Coones’ statement was included, was admissible under K.S.A. 2013 Supp. 60-460(d)(3). Because the hearsay within the daughter’s testimony and Coones’ hearsay statement within that hearsay were both admissible, the testimony was admissible. See K.S.A. 60-463. The district court did not abuse its discretion allowing it into evidence.
Probative value not outweighed by potential for undue prejudice
Coones next argues the district court should have excluded the evidence because its probative value was outweighed by its potential for causing undue prejudice. The State responds that all evidence against a party is prejudicial, but this evidence was highly probative because the confrontation occurred close in time to the murder.
The district court may exclude evidence upon finding its probative value is substantially outweighed by its prejudicial impact. The district court’s application of this rule is reviewed for abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). The “prejudicial impact” at issue is that of “unfair prejudice.” State v. Francis, 282 Kan. 120, 136, 145 P.3d 48 (2006).
Coones cites no authority in arguing the district court improperly balanced the evidence’s probative value and potential for causing undue prejudice. He speculates tire statement could be interpreted as commentary on the civil dispute between he and Kathleen but does not elaborate how the evidence might have provoked the jury to base its decision on an improper ground.
We hold that there is no indication Coones’ statement would “elicit a response from the jury that might cause it to base its decision on emotion rather than reason.” Francis, 282 Kan. at 136. It instead tended to explain his actions the night Kathleen was killed. The district court did not abuse its discretion by allowing the State to present this evidence.
Prosecutorial Misconduct
Coones next argues the prosecutor committed misconduct by commenting on his expert witness’ credibility and by stating facts not in evidence by representing Coones’ latest settlement offer to Kathleen was not accepted.
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).
Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001) (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to make reasonable inferences based on the evidence, but it does not extend so far as to permit arguing facts not in evidence. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011). But arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and on appellate review the court must consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. See Bridges, 297 Kan. at 1014-15.
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 the 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. 60-261 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 the 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 the burden to demonstrate harmiessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
Argument regarding expert’s testimony was not misconduct
Coones first argues the prosecutor improperly commented on the credibility of his expert witness, who testified about blood splatter, when he said:
“I mean no disrespect to Mr. Gietzen from Springfield, the expert hired by the defense. He is probably a nice man, but he added nothing meaningful or conclusive to your deliberations. You can find that he doesn’t have the land of current credentials that command respect for the things he says. He claimed to be, to interpret blood splatter, but he is not formally trained in blood splatter, and his last formal training of any land was in 1999, and his certifications are expired or he said he didn’t have them, and his association with very scientific organizations is a result of paying a membership fee, rather than passing proficiency testing. Mr. Gietzen came along well after the fact and offered his opinion. He just doesn’t have the juice, the credentials for his opinion to be of any relevant value. Essentially, he looked at much of the same evidence that you have been presented. It is not his opinion that matters. It is your interpretation of the evidence that matters now.”
“Generally, prosecutors may not present their personal opinion of a witness’ credibility to the jury because such comments constitute ‘ “unsworn, unchecked testimony.” ’ ” Bridges, 297 Kan. at 1013 (quoting State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 [2012]). But a matter that is a proper subject for cross-examination is equally suitable for discussion in closing arguments. See State v. Wells, 297 Kan. 741, 752, 305 P.3d 568 (2013); State v. Britt, 295 Kan. 1018, 287 P.3d 905 (2012). The prosecutor crosses the line into misconduct when the argument, though on a proper topic, sheds its evidentiary ties. See 297 Kan. at 752.
The record here supports the prosecutor’s comments about the specific deficiencies in the expert’s training and professional memberships. The topic was a proper one for cross-examination and argument. See K.S.A. 60-456(b) (limiting expert testimony to testimony by witness qualified as expert by knowledge, skill, experience, or training); State v. Hobson, 234 Kan. 133, 151, 671 P.2d 1365 (1983) (cross-examination may be permitted on matters subject of direct examination). The prosecutor’s commentary did not amount to an unsworn opinion of tire expert’s credibility. It was a permissible, evidence-based argument.
Comment about latest settlement offer was not misconduct
Coones next argues the prosecutor commented on facts outside the evidence when he said:
“[Coones] offered first in that first required settlement offer zero. He wasn’t going to give anything in order to settle that claim. He eventually agreed to offer a quarter of tire benefit. That wasn’t accepted.”
Coones contends this was misconduct because there was no evidence the latest settlement offer had been rejected.
Prosecutors must confine their closing argument to matters in evidence and must not misstate the facts. State v. Williams, 299 Kan. 509, 542, 324 P.3d 1078 (2014). In determining whether misconduct occurred, this court has relied on fairly technical comparisons of the prosecutor s comments with the evidence at trial. See 299 Kan. at 542-43; State v. Tahah, 293 Kan. 267, 277-78, 262 P.3d 1045 (2011); State v. Baker, 281 Kan. 997, 135 P.3d 1098 (2006).
In this case, there was evidence Coones’ offer to let Kathleen take 25 percent of the insurance proceeds to settle the lawsuit was transmitted to Kathleen’s lawyer shortly before Kathleen’s death and that the lawyer did not forward the offer to Kathleen before she died. The offer, then, was not accepted in the time between when Coones made it and Kathleen’s death. Because the evidence sustains the prosecutor’s comment that the offer was not accepted, the comment was not improper.
Cumulative Error
Because there was no error, we need not address Coones’ cumulative error argument. See Reed, 300 Kan. at 494.
The Hard 50 Sentence
Coones’ hard 50 sentence was imposed pursuant to K.S.A. 21-4635, under which statute die district court made findings of fact necessary to elevate Coones’ minimum sentence beyond the default hard 25 life sentence for premeditated first-degree murder. This question already has been decided in Coones’ favor. That statute is unconstitutional. State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014); see Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The State does not argue harmless error review applies, so the court need not decide the question here. See Soto, 299 Kan. at 126 (deferring decision on whether harmlessness analysis applies because, on facts of case, error could not meet the test). Though in other recent hard 50 cases we have examined whether sufficient evidence supported imposing the sentence, we do not do so here because Coones does not raise the issue and because our decision that the sentence cannot stand because of the constitutional infirmity renders the question moot. State v. Roeder, 300 Kan. 901, 942, 336 P.3d 831, (2014); accord State v. Holt, 300 Kan. 985, 1012, 336 P.3d 312, (2014).
Coones’ conviction is affirmed, his' hard 50 sentence is vacated, and the case is remanded to the district court for resentencing.
Michael J. Malone, Senior Judge, assigned. | [
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Malone, C.J.:
Bradley Wayne Mullens appeals his sentence following his conviction of aggravated escape from custody. Mullens argues for the first time on appeal that the district court erred in classifying his 2003 Texas juvenile adjudication of burglary as a person felony for criminal history purposes. Mullens claims that by doing so, the district court violated his constitutional rights as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
We will briefly set forth the procedural histoiy relevant to the only issue on appeal. On December 9, 2013, pursuant to a plea agreement, Mullens pled no contest to one count of aggravated escape from custody. According to the presentence investigation (PSI) report, Mullens’ criminal history included a 2003 Texas juvenile adjudication identified as “Burglary of Habitation (KSA 21-3715.a)” and classified as a juvenile person felony. Mullens and his attorney reviewed the PSI report, and Mullens personally agreed at the sentencing hearing that the report was an accurate reflection of his criminal histoiy. Accordingly, the district court set Mullens’ criminal histoiy score at C and sentenced him to 18 months’ imprisonment with 12 months’ postrelease supervision, to run consecutive to the sentence in a separate criminal case. Mullens timely appealed.
Mullens’ sole contention on appeal is that the district court erred in classifying his 2003 Texas adjudication as a person offense for criminal histoiy purposes. Specifically, Mullens argues that the district court, by making factual determinations about the Texas burglary, violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated in Apprendi and Descamps.
In response, the State argues that by failing to challenge his criminal histoiy in the district court, “Mullens effectively stipulated” that tire Texas burglary was comparable to the type of burglary that in Kansas is a person felony. The State also argues that Mullens should not be able to raise this argument for the first time on appeal. Finally, the State argues that the Texas and Kansas burglary statutes are comparable as a matter of law, so the district court did not make any factual determinations in classifying the Texas crime as a person felony.
Whether a prior conviction should be classified as a person or nonperson offense involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015).
Initially, we note that although Mullens did not challenge the person classification of the 2003 Texas burglary in the district court, he may do so for the first time on appeal under State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). In Dickey, our Supreme Court held that “a legal challenge to the classification of a prior adjudication for purposes of lowering [a defendant’s] criminal history score[ Jean be raised for the first time on appeal pursuant to K.S.A. 22-3504(1). [Citation omitted.]”
In a related argument, the State asserts that because Mullens did not object in the district court to his criminal history score, he stipulated to any necessary factual findings, which relieved the State of its burden to prove by a preponderance of the evidence any facts of the Texas burglary. Our Supreme Court rejected a similar argument in Dickey when the State claimed that the defendant’s failure to object to the person classification of his 1992 burglary adjudication relieved the State of its burden to prove that it involved a dwelling. See Dickey, 301 Kan. at 1033-34. Based on Dickey, because Mullens’ argument raises a legal issue of whether the district court erred by making factual determinations without using permissible resources, we reject the State’s argument that Mullens is barred from raising this issue on appeal because he stipulated to his criminal history score.
Mullens’ argument on appeal requires interpretation of three statutes: (1) K.S.A. 2014 Supp. 21-6811; (2) K.S.A. 2014 Supp. 21-5807, the Kansas burglaiy statute; and (3) Tex. Penal Code Ann. § 30.02 (Vernon 2001), the Texas burglary statute. In 2003, the Texas burglary statute stated, in relevant part:
“(a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02 (Vernon 2001).
K.S.A. 2014 Supp. 21-5807, tire Kansas burglaiy statute in effect at the time Mullens was convicted of his current crime of conviction, states:
“(a) Burglaiy is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime therein;
(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexually motivated crime therein.”
K.S.A. 2014 Supp. 21-6811(d) also is relevant. This statute deals particularly with burglary and states:
“Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:
“(1) As a prior person felony if the prior conviction or adjudication was classified as a burglary defined in subsection (a) of K.S.A. 21-3715, prior to its repeal, or subsection (a)(1) of K.S.A. 2014 Supp. 21-5807, and amendments thereto.
“(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as defined in subsection (b) or (c) of K.S.A. 21-3715, prior to its repeal, or subsection (a)(2) or (a)(3) of K.S.A. 2014 Supp. 21-5807, and amendments thereto.
“The facts required to classify prior burglary adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence.” K.S.A. 2014 Supp. 21-6811(d).
Mullens’ argument appears to be based upon K.S.A. 2014 Supp. 21-6811(d). Mullens contends that because the Texas burglary statute under which he was convicted does not fit within the parameters of K.S.A. 2014 Supp. 2145807(a)(1), the person classification of the Texas burglary involved impermissible judicial fact finding.
Mullens does not dispute that his Texas burglary involved a dwelling; he specifically admits that he “was convicted of burglary occurring in a habitation.” The PSI report defined his Texas burglary as “Burglary of Habitation,” and Tex. Penal Code Ann. § 30.01(1) (Vernon 2001) defines habitation as “a structure or vehicle that is adapted for the overnight accommodation of persons.” This clearly fits within the Kansas definition of “dwelling”: “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” See K.S.A. 2014 Supp. 21-5111(k).
Nevertheless, Mullens claims that the person classification of his Texas burglary adjudication was in error. Instead of focusing on the element involving a dwelling, he focuses on the intent to commit a crime element included in both the Kansas and Texas statutes. The Texas burglary statute allows for a conviction when a person enters into or remains concealed in a habitation with the intent to commit a felony, theft, or assault-, whereas the Kansas statute allows for a conviction when a person enters into or remains within a dwelling with the intent to commit a felony, theft, or sexually motivated crime.
In Texas, assault can be either a felony or misdemeanor. See Tex. Penal Code Ann. § 22.01 (Vernon 2001). Thus, the Texas burglaiy statute allows for a conviction when the intent to enter or remain within a structure is to commit misdemeanor assault, whereas the Kansas burglary statute does not, unless the assault was sexually motivated. Mullens argues that because his Texas adjudication could have occurred when he entered or remained in a habitation with the intent to commit misdemeanor assault that was not sexually motivated—facts that would not constitute burglary in Kansas—the Texas adjudication should have been treated as a nonperson felony.
Mullens argues that under Apprendi and Descamps, the district court erred in going beyond the fact of the Texas burglary adjudication and in making factual findings about the Texas burglary adjudication without requiring the State to prove those facts beyond a reasonable doubt. Under the analysis in Descamps, which has been adopted in Kansas in Dickey, a court may use one of two approaches to determine whether a prior conviction may be used for sentencing purposes. The categorical approach is appropriate “when the statute forming the basis of the defendant’s prior conviction contains a single set of elements constituting the crime,” and consists of comparing the elements of the two crimes; if the elements of the prior crime of conviction are the same as or narrower than the later offense, the prior crime may be used for sentencing purposes. See Dickey, 301 Kan. at 1037. The second approach, the modified categorical approach, “applies when the statute forming the basis of the prior conviction is a 'divisible statute,’ i.e., a statute which includes multiple, alternative versions of die crime and at least one of the versions matches the elements of the generic offense.” 301 Kan. at 1037.
The Texas burglary statute at issue here is a divisible statute, and one of the permutations of elements under which a defendant may commit burglary in Texas matches the elements of Kansas burglary. Therefore, under Descamps and Dickey, the modified categorical approach is appropriate. That approach allows a sentencing court, without running afoul of Apprendi, “to look beyond the elements of the . . . statute and examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.’ [Citation omitted.]” Dickey, 301 Kan. at 1037-38. Such documents include “charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. [Citation omitted.]” 301 Kan. at 1038. The sentencing court did not employ this approach in Mull-ens’ case.
Under K.S.A. 2014 Supp. 21-6811(d)(l), by classifying Mullens’ Texas burglary adjudication as a person felony, the sentencing court necessarily found that it “was classified as a burglary as defined in ... subsection (a)(1) of K.S.A. 2014 Supp. 21-5807,” which is “without authority, entering into or remaining within any . . . [djwelling, with intent to commit a felony, theft or sexually motivated crime therein.” Yet, as Mullens argues, it is possible that the Texas burglary adjudication did not involve these elements, and the sentencing court did not receive any evidence to support its implied finding that it did. The sentencing court erred in making that factual finding without examining the permissible documents identified in Dickey for information that would have supported such a finding.
For these reasons, we must vacate Mullens’ sentence and remand for further proceedings to determine whether his Texas burglary adjudication should be classified as a person or nonperson offense for criminal history purposes. At resentencing, the district court may examine documents related to the Texas burglary adjudication in order to determine the nature of the offense, including charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from any bench trial. See Dickey, 301 Kan. at 1038. If the district court is unable to determine the basis of the Texas burglary adjudication or if the court determines that it involved entry of a structure with intent to commit a misdé- meanor assault that was not sexually motivated, then there is no comparable Kansas offense and tire Texas burglary adjudication must be classified as a nonperson felony. However, if the district court determines that the Texas burglary adjudication involved entry of a structure with intent to commit a felony, theft, or sexually motivated crime, then the Texas burglary adjudication can be classified as a person felony since there is no dispute that tire Texas burglary involved a dwelling or a habitation.
Vacated and remanded with directions. | [
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Powell, J.:
Bluestem Telephone Company and numerous other rural local exchange carriers (RLECs) appeal the district court’s order affirming an order from the Kansas Corporation Commission (Commission), altering the manner in which the RLECs would receive support from the Kansas Universal Service Fund (KUSF) in light of a new order from the Federal Communications Commission (FCC) and subsequent state statutoiy amendments. Because we find that K.S.A. 2014 Supp. 66-2005(c)(l) is not preempted by federal law, at least during the transition period, and that challenges to the Commission’s interpretation of K.S.A. 2014 Supp. 66-2008(e)(1) are not ripe for adjudication, we reverse in part, vacate in part, and remand with directions.
Factual and Procedural Background
The 1996 Telecommunications Act
The Telecommunications Act of 1996 (1996 Act) was passed by Congress in order to further deregulate the telecommunications industry. 47 U.S.C. § 151 et seq. (2012); see Citizens’ Utility Ratepayer Bel. v. Kansas Corporation Comm’n, 264 Kan. 363, 369, 956 P.2d 685 (1998). The 1996 Act was intended to serve the dual purposes of ensuring “universal service” to both low income consumers and consumers in high-cost areas and promoting competition in all markets. 47 U.S.C. §§ 251-254 (2012). The 1996 Act required the federal government to create universal service funds designed to ensure that consumers in high-cost areas received services for rates “reasonably comparable” to those services offered in lower-cost, competitive market areas. 47 U.S.C. § 254(b)(2)-(5); Bluestem Telephone Co. v. Kansas Corporation Comm’n, 33 Kan. App. 2d 817, 819, 109 P.3d 194, rev. denied 280 Kan. 981 (2005) (Blue-stem I). States were permitted to adopt their own universal service mechanisms not inconsistent with the federal regulation to support universal service at the intrastate level. 47 U.S.C. § 254(f).
In response, the Kansas Legislature passed the Kansas Telecommunications Act (KTA) in 1996. K.S.A. 66-2001 et seq. The KTA’s goals matched those of the 1996 Act—ensuring that eveiy Kansan had access to first class telecommunications service at an affordable price while at the same time promoting consumer access in all areas of the state. K.S.A. 66-2001. The KTA ultimately required local exchange carriers (LECs)—-or in layman s parlance, local telephone companies—to reduce their intrastate access charges, which had subsidized the cost of basic local service, over a 3-year period to a level equal or close to the rates charged for interstate access. This requirement had tire effect of raising local telephone rates while at the same time lowering long distance rates. To prevent local telephone rates from increasing to an unaffordable level, particularly for low income consumers and consumers in high-cost rural areas, die Commission established the KUSF to subsidize LECs. At the end of the 3-year transition period, the Commission provided KUSF subsidies to LECs based on the amounts they needed to cover their actual prudent costs to provide universal service over and above the revenues generated by rates they charged to their customers which they had been required to set at levels reasonably comparable to rates in more competitive urban markets. Bluestem I, 33 Kan. App. 2d at 819-20.
Over the years, technology changed, and with it came an increase in the use of wireless telecommunications and broadband data services. In recognition of the changing technological and competitive marketplace, the FCC released the National Broadband Plan (Plan) in March 2010. Through the Plan, the FCC established a roadmap to expand broadband capabilities in the United States. The goal of this expansion was to stimulate economic growth and boost the country’s capabilities in education, health care, and government performance. Federal Communications Commission, National Broadband Plan, https;//www.fcc.góv/national-broadband-plan. As part of this program, the FCC issued a notice of proposed rulemaking that ultimately resulted in FCC Order No. 11-161. This order became known as tire USF/ICC Transformation Order (Transformation Order). In the Matter of Connect America Fund, 26 FCC Red 17663 (2011). Events leading up to and following the adoption of tire Transformation Order triggered the actions leading to this appeal.
The Commissions 170 Docket
Prior to the finalization of the Transformation Order, the Commission opened an industry-wide docket, No. 12-GIMT-170-GIT (170 Docket), to analyze the potential effects of the Plan and the proposed Transformation Order. The Commission directed the parties involved to address the impact of potential changes planned for the Federal Universal Service Fund (FUSF), the potential impact of proposed intercarrier compensation reform, and other issues related to the FCC s proposed rulemaking.
As noted in its order, the Commission was concerned because Kansas LECs received the third-highest amount of FUSF distributions in the country; accordingly, the Commission was concerned that changes in the FUSF could have a significant impact on those companies. In addition, the Commission wanted to reevaluate the State’s priorities in providing communication services in the changing industry. The Commission’s order opening the docket specified the various topics it had determined to investigate and requested input from interested parties.
Numerous telecommunications carriers entered appearances in the 170 Docket, including the parties involved in this appeal. Shortly after the Commission initiated the 170 Docket, the FCC issued the final version of the Transformation Order. The Commission took administrative notice of the FCC order.
In March 2012, the Commission issued an order directing interested parties to file prehearing briefs to address their views of the various issues arising from the Transformation Order. In issuing this order, the Commission found that the Transformation Order made a number of changes to the FUSF and intercarrier compensation rules “that could affect the revenues that carriers operating in Kansas receive from the federal]] jurisdictional services.” (Emphasis added.) In addition, the Commission noted that carriers might receive reduced intrastate and interstate access revenue but gain other types of revenues. The Commission requested the parties brief specific issues set forth in the order.
The various parties presented significantly different perspectives on the issues. Non-LECs expressed concern that KUSF subsidies should be provided in a competitively neutral manner; accordingly, they argued that an LEC should not receive KUSF subsidies any time an unsubsidized competitive carrier was providing universal service in the LECs territory. One party suggested that any changes to the KUSF should mirror the changes made to the FUSF to avoid any conflict with the federal law. It argued this type of change would ensure LECs would be required to implement the technological reforms intended by the Transformation Order. The RLECs repeatedly argued that because they were rate-of-retum companies, the States failure to ensure KUSF payments paid for embedded costs would amount to an unconstitutional taking of property. Sprint, a large telecommunications carrier that does not provide LEC services but provides wireless services to customers—who, like all intrastate telecommunications carriers, contributes to the KUSF and passes those charges along to its customers—opposed any action increasing KUSF reimbursement. Sprint asserted that nothing in the Transformation Order contemplated or encouraged replacement of funds lost by the federal reforms. Sprint claimed that providing additional KUSF subsidies to substitute for revenues lost under the Transformation Order would be contrary to federal law.
Based upon the myriad of responses and concerns, the Commission ordered LECs and competing LECs to file revised tariffs complying with the Transformation Order s requirement that prices move toward parity between interstate and intrastate terminating charges. Several months thereafter, the Commissions Utilities Division (Division) issued a report summarizing the nature and extent of the effects the Transformation Order would have on Kansas telecommunications companies and customers. The Division noted that various portions of the federal reforms—involving Local Interstate Common Line Support, the freezing of FUSF in areas with unsubsidized competitive carriers, FUSF per line dollar limits, and below-benchmark local rates—would have no effect or only limited impact on RLECs.
The Division recognized, however, that many of the federal reforms would impact RLECs. The Division estimated that the overall impact of the FUSF reforms for RLECs would result in an approximate 3.6% decrease in FUSF support in 2012 (or $4.9 million); approximately 45% of tire loss would be the result of lost support to offset intrastate costs. At the same time, intercarrier compensation reforms would increase these companies’ revenues by $1.26 million. With respect to 2013, the Division estimated that RLECs would lose about $17.5 million of FUSF support while their revenues from intercarrier compensation reforms would increase by $790,000.
Finally, the Divisions report mirrored some of Sprints concerns that the Commission should review existing Kansas law to determine whether it conflicted with the new Transformation Order. Specifically, the Division expressed concern that K.S.A. 2012 Supp. 66-2005(c)—the statutory provision that provides for the KUSF to reimburse RLECs for revenues lost in bringing interstate/intrastate access rates into parity—might conflict with the Transformation Order’s transition to a bill-and-keep methodology. Bill-and-keep is a system whereby LECs would “look first to their subscribers to cover the costs of the network, then to explicit universal service support where necessary.” Transformation Order, 26 FCC Red at 17676, ¶ 34. As a result of the Divisions report, the Commission ordered the parties to submit additional briefing on whether K.S.A. 2012 Supp. 66-2005(c) conflicted with the FCC’s order.
The Commission’s 004 Docket
While tire 170 Docket was pending, tire Commission opened another investigative docket, No: 13-GIMT-004-GIT (004 Docket). Again, based upon the new FCC rules, the Commission decided to investigate whether RLECs’ intrastate sioitched access rates should be increased in fight of the Transformation Order’s capping of intrastate terminating access rates. At this time, RLECs were obligated to file information with the Commission regarding the intrastate switched access rates anyway. The Commission ordered RLECs to file specified data with respect to their intrastate switched access rates and provide comments on the Commission’s staff’s (Staff) recommendations for future handling of terminating rates, switched access rates, and reduction of KUSF support through the use of an access recovery charge authorized under the Transformation Order.
After the RLECs filed their calculations of access reductions, the Commission issued its order. In compliance with the Transformation Order capping'intrastate terminating access rates, the Commission refused to allow RLECs to increase those rates. However, the Commission ordered that RLECs could adjust their intrastate originating access rates as necessary to reach parity with higher interstate rates. The Commission delayed the intrastate access revisions until July 1, 2013, to coincide with the timing of the FCCs order imposing rate reductions. If an RLEC increased its intrastate originating access charges, those increased revenues would reduce its KUSF support. Other issues—such as concerns about revenues from the federal Connect America Fund, access recovery charges, and KUSF recoveiy for the changes in intrastate terminating access rates—were referred to the 170 Docket.
The RLECs participated in the 004 Docket. They objected to Staffs assertions that losses incurred as a result of the Transformation Order could be recovered from an access recovery charge rather than from the KUSF. They asserted that an access l'ecov-ery charge was not designed to produce replacement revenue and those payments were limited regardless of the carrier s revenue requirement. The RLECs argued that changing KUSF procedures at this stage was premature due to the numerous challenges to the Transformation Order filed in federal court. Parenthetically, we note that in May 2014, the Tenth Circuit Court of Appeals rejected various challenges to the Transformation Order brought by a number of telecommunications carriers and upheld the Transformation Order as a valid exercise of the FCCs power. In re FCC 11-161, 753 F.3d 1015 (10th Cir. 2014). The RLECs further argued that the Transformation Order and changes recommended by Staff threatened to impact rural customers disproportionately, contrary to federal and state mandates, and impaired their ability to obtain a return on their investments. Significantly, however, none of the RLECs objected to the tariff calculations accepted by the Commission in the 004 Docket or to the KUSF support determinations based upon those revised tariffs.
House Bill 2201
While both of these dockets were pending before the Commission, various telecommunications companies, including RLECs, submitted proposed legislation—H.B. 2201—to the Kansas Legislature in February 2013. House J. 2013, p. 138. The original bill called for the creation of a telecommunications study committee and a number of amendments to the KTA, including amendments to K.S.A. 2012 Supp. 66-2005(c) and K.S.A. 2012 Supp. 66-2008. During various committee hearings, RLECs supported the proposed legislation. See House Utilities & Telecommunications Committee Minutes, February 6, 2013, Attachments 6 and 7; Senate Utilities Committee Minutes, March 12, 2013, Attachment 3. Sprint took a neutral stance on H.B. 2201, although it recommended several amendments to the proposed legislation. See House Utilities & Telecommunications Committee Minutes, February 8, 2013, Attachments 4 and 5; Senate Utilities Committee Minutes, March 14, 2013, Attachment 3.
Staff also testified to the relevant legislative committees about H.B. 2201. Although Staff took a neutral viewpoint, it expressed concerns related to the bill’s actions in limiting the Commission’s ability to regulate certain types of companies or address consumer issues and concerns that some of the proposed amendments to K.S.A. 2012 Supp. 66-2005 might require KUSF to replace each dollar of FUSF support lost by RLECs. Staff also cited to the pending 170 Docket and issues being addressed therein. Finally, Staff expressed concern that the proposed amendment to K.S.A. 2012 Supp. 66-2008(f) would prevent the Commission from implementing FCC reforms. House Utilities & Telecommunications Committee Minutes, February 8, 2013, Attachment 2. Before the Senate Committee, Staff suggested that H.B. 2201, as amended, was inconsistent with FCC reforms and would malee it difficult for the Commission to implement those reforms. Senate Utilities Committee Minutes, March 14, 2013, Attachment 1. After various revisions, the legislature adopted an amended version of H.B. 2201 that was signed into law on April 17, 2013. House J. 2013, p. 881.
The Commissions Final Decision in the 170 Docket
Six weeks after this legislation was signed into law by the Governor, the Commission issued its initial order in the 170 Docket. The Commission found that part of the amendments adopted in H.B. 2201 resolved some of the issues briefed by the parties. More specifically, the Commission found that after the amendments, K.S.A. 2014 Supp. 66-2008(e)(2) precluded the KUSF from reimbursing RLECs operating as rate-of-return companies for losses incurred because of changes to FUSF support. In addition, the Commission found that RLECs were not entitled to KUSF funds to offset losses caused with the intercarrier compensation reforms because such losses could be recovered from newly authorized access recovery charges and the Connect America Fund. The Commission concluded that K.S.A. 2014 Supp. 66-2005(c)(l) conflicted with the Transformation Order s purposes and was expressly preempted by ¶ 764 of the federal order. See Transformation Order, 26 FCC Red at 17916.
In addition, the Commission evaluated the manner in which it calculated the amount of KUSF support for rate-of-return RLECs. In interpreting the language of K.S.A. 2014 Supp. 66-2008(e)(l)— which requires KUSF support “be based on such carrier’s embedded costs, revenue requirements, investments and expenses”—the Commission concluded that such costs and revenue requirements only served as the starting point for determining KUSF support. The Commission decided that because the statute did not require support to be based upon “all” embedded costs, such costs would merely be the starting point for determining KUSF support and the Commission was not required to reimburse all embedded costs. The order, however, did not otherwise state whether such calculations would be determined based upon a set percentage of embedded costs or some other process. The Commission denied the motion for reconsideration filed by the RLECs.
Actions in the District Court
The RLECs filed a timely petition for judicial review in the Washington County District Court, challenging the Commissions orders in both the 170 Docket and the 004 Docket. The RLECs asserted that the Commission s orders violated the law in depriving them of their right to a rate of return, contrary to K.S.A. 2014 Supp. 66-2005(c)(l), and that the Commission erred in determining the statute was preempted by federal law. The RLECs also requested injunctive relief to preclude enforcement of the order from the 170 Docket. Sprint successfully moved to intervene in the case.
The district court accepted briefing from the parties and heard oral arguments on the issues. The district court ultimately agreed with the Commission. In its opinion, the court discussed the evolution of regulation of RLECs before and after the KTA, summarized the Transformation Order and the Commission’s review of the same, and summarized the Commissions subsequent decision in the 170 Docket. After reviewing the Transformation Order, K.S.A. 2013 Supp. 66-2005(c)(l), and federal law, the district court upheld the Commission’s determination that K.S.A. 2013 Supp. 66-2005(c)(l) was preempted, either expressly or impliedly. The district court relied on the preemption language of 47 U.S.C. § 251(d)(3) (2012) and determined that the KUSF reimbursement statute stood as an obstacle to the objectives of the Transformation Orders reform of intercarrier compensation and its transition to a bill-and-keep methodology.
The district court also addressed the RLECs’ challenge to the Commission’s interpretation of K.S.A. 2013 Supp. 66-2008(e) that KUSF support be “based on” a carrier’s embedded costs and revenue requirements and did not require the KUSF to provide 100% reimbursement for all of an LEC’s costs. Further, the RLECs argued that the Commission erred in finding that they had other means to capture revenue and that the reformed federal support mechanisms were inadequate. The district court found that the Commission’s interpretation that the statute only requires embedded costs and revenue requirements be the “starting point” for calculating KUSF subsidies was a reasonable interpretation of the statute and that the Commission appropriately considered the Transformation Order and the public policy goals supporting it.
We briefly note that although the district court referred to the 2013 Supplement for 66-2005 and 66-2008, there were no changes to these statutes in the 2014 Supplement.
The RLECs timely appeal.
Did the District Court and Commission Err in Finding That K.S.A. 2014 Supp. 66-2005(0X1) Was Preempted by the FCC’s Transformation Order?
A. Standard of Review
The RLECs are challenging the Commissions decisions under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See also K.S.A. 66-118a(b) (judicial review of the Commissions decisions in non-rate cases to be in accordance with K.S.A. 77-609). As the parties asserting that the Commissions actions are invalid, the RLECs bear the burden of proving their invalidity. See Clawson v. Kansas Dept. of Agriculture, 49 Kan. App. 2d 789, 795, 315 P.3d 896 (2013). Under the KJRA, “a court reviewing an administrative action shall grant relief only if it determines that foe agency violated one or more of foe provisions listed in K.S.A. 2012 Supp. 77-621(c)(1)-(8).” 49 Kan. App. 2d at 795. “On appeal, we exercise the same statutorily limited review of the agency’s action as does the district court, i.e., “‘as though the appeal had been made directly to this court.”’” Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 611, 132 P.3d 870 (2006) (quoting Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 245, 75 P.3d 226 [2003]).
The RLECs assert that foe Commission erroneously interpreted or applied the law; specifically, they argue that foe Commission erroneously concluded that federal law preempted K.S.A. 2014 Supp. 66-2005(c)(l) and their statutoiy right to receive support from the KUSF. With respect to the Commission’s interpretation of federal and state statutes, contrary to the district court’s statement that we owe deference to an agency’s interpretation of a statute that such agency is charged with implementing, our standard of review is unlimited and no such deference is to be given. See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“doctrine of operative construction” repudiated). This notwithstanding, foe Commission, relying on Muir v. Kansas Health Policy Authority, 50 Kan. App. 2d 854, 334 P.3d 876 (2014), and Ritter v. Cecil Cty. Office of Hous. b Cmty. Dev., 33 F.3d 323 (4th Cir. 1994), argues that we should give some level of deference to its interpretation of federal law.
Before turning to those cases, we note that the standard of review used by the federal courts in cases questioning an agency’s interpretation of federal law differs from the standards currently applied in Kansas concerning the interpretation of Kansas law. As stated by Justice Antonin Scalia:
“ “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.’ [Chevron U.S.A. v. Natural Res. Def. Council,] 467 U.S. [837,] 842, 104 S. Ct. 2778[, 81 L. Ed. 2d 694 (1984)]. First, applying the ordinary tools of statutoiy construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue. If tire intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ Id., at 842-843. But ‘if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’ Id., at 843.” Arlington v. FCC, 569 U.S. _, 133 S. Ct. 1863, 1868, 185 L. Ed. 2d 941 (2013).
While we owe deference to the FCC s interpretation of federal law, the Commission cites cases urging us to give it deference in its interpretation of federal law. However, we find the cases relied upon by the Commission to be unpersuasive. Muir involved a challenge to a state agency’s Medicaid manual developed to implement federal Medicaid statutes. The Muir court granted deference to the agency’s guidance manual because it involved the agency’s interpretation of federal law “as contained in a federally approved manual or guidance document.” (Emphasis added.) 50 Kan. App. 2d at 857-58. Ritter, similarly, involved local agency procedures adopted in implementing a federal program. The Ritter court, in granting some deference to the agency’s interpretation, relied on cases where federal courts had given deference to federal agency interpretations of federal laws. 33 F.3d at 327-28. We decline to give deference to the Commission’s interpretation of the relevant statutes and orders because our Supreme Court has unequivocally mandated that our duty is to review relevant statutes without according any deference. Douglas, 296 Kan. at 559. Accordingly, while deference is to be given to the FCC’s interpretation of federal law, our review of the Commission s interpretation of the Transformation Order and relevant state and federal statutes is unlimited.
B. Principles Regarding Preemption
Because the Commissions orders are based, in part, upon federal preemption of Kansas law, a review of the law of preemption is in order. The United States Supreme Court recently reiterated the principles of federal preemption:
“The Supremacy Clause provides that ‘the Laws of the United States’ (as well as treaties and the Constitution itself) ‘shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’ Art. VI, cl. 2. Congress may consequently pre-empt, i.e., invalidate, a state law through federal legislation. It may do so through express language in a statute. But even where, as here, a statute does not refer expressly to pre-emption, Congress may implicitly pre-empt a state law, rule, or other state action. See Sprietsma v. Mercury Marine, 537 U.S. 51, 64, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002).
“It may do so either through ‘field’ pre-emption or ‘conflict’ pre-emption. As to the former, Congress may have intended ‘to foreclose any state regulation in the area,’ irrespective of whether state law is consistent or inconsistent with ‘federal standards.’ Arizona v. United States, 567 U.S. _, _, 132 S. Ct. 2492, 2502, 183 L. Ed. 2d 351 (2012).... In such situations, Congress has forbidden the State to take action in the field that the federal statute pre-empts.
“By contrast, conflict pre-emption exists where ‘compliance with both state and federal law is impossible,’ or where ‘the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” California v. ARC America Corp., 490 U.S. 93, 100, 101, 109 S. Ct. 1661, 104 L. Ed. 2d 86 (1989). In either situation, federal law must prevail.” (Emphasis added.) ONEOK, Inc. v. Learjet, Inc., 575 U.S. _, 135 S. Ct. 1591, 1594-95, 191 L. Ed. 2d 511 (2015).
Our Supreme Court has stated that “ ‘[i]n the absence of express preemption, there is a strong presumption that Congress did not intend to displace state law.’” Doty v. Frontier Communications, Inc., 272 Kan. 880, 891, 36 P.3d 250 (2001) (quoting Graham v. Wyeth Laboratories, 666 F. Supp. 1483, 1489 [D. Kan. 1987]). Moreover, the court has stated “that the conflict between the two laws must be positive and direct in order to make coexistence of the two laws an impossibility. It is necessaiy that the state law in its application to the same field contravene federal public policy or cause a different result or consequence.” 272 Kan. at 891. We exercise unlimited review over questions of whether federal preemption applies in a particular case. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 940, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
C. Does the 1996 Act Expressly Preempt K.S.A. 2014 Supp. 66-2005(c)(1)?
The 1996 Act imposed obligations on telecommunications carriers to provide universal service for telecommunications service across the country. 47 U.S.C. § 254 (2012). The 1996 Act sets forth various principles for the preservation and advancement of universal service, including service quality standards, assurances of just and reasonable rates, ensuring access to advanced services to all parts of the country, requiring equitable contributions by all telecommunications carriers to support universal service, and access to advanced telecommunications services for education. 47 U.S.C. § 254(b). With respect to state regulations, the 1996 Act states:
“A Slate may adopt regulations not inconsistent with the Commissions rules to presene and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscriminatoiy basis, in a manner determined by the State to the preservation and advancement of universal service in that State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support such definitions or standards that do not rely on or burden Federal universal senice support inechanisms.” (Emphasis added.) 47 U.S.C. § 254(f).
Although section 254(f) did not mandate states to switch from implicit subsidies to explicit subsidy mechanisms for carriers within their jurisdictional authority, Qwest Communications Intern., Inc. v. F.C.C., 398 F.3d 1222 (10th Cir. 2005), states were encouraged to find support mechanisms to assist with rate reforms as long as the state plans were consistent with federal law. The 1996 Act clearly contemplated a partnership between federal and state governments to support universal service. See, e.g., 47 U.S.C. § 254(b)(5) (“There should be specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service.”); 47 U.S.C. § 254(f) (“Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, in a manner determined by the State to the preservation and advancement of universal service in that State.”); Qwest Corp. v. F.C.C., 258 F.3d 1191, 1203 (10th Cir. 2001). Therefore, we cannot conclude that the 1996 Act expressly preempts state law in the area of universal service subsidies.
D. Does the Transformation Order Preempt K.S.A. 2014 Supp. 66-2005(c)(l)P
The Commission argues that the reimbursement provision of K.S.A. 2014 Supp. 66-2005(c)(l) is either expressly preempted or impliedly preempted under the conflict preemption standard. The Commission so found in the order it issued in the 170 Docket. The district court found the statute was preempted but did not explicitly determine whether such preemption was express or implied.
Our review fails to show—and the parties fail to point us to any provision—that the Transformation Order expressly or unequivocally bars Kansas from providing KUSF or other financial support to LECs impacted by the universal service fund and intercarrier compensation reforms as long as it does not “modify or suspend the federal bill-and-keep regime” contained in the Transformation Order. Transformation Order, 26 FCC Red at 17944, ¶ 824. Therefore, we must determine whether the Transformation Order impliedly preempts K.S.A. 2014 Supp. 66-2005(c)(l); this finding turns on whether the statute conflicts with the Transformation Order and stands as an “ ‘obstacle to the accomplishment and execution of the full purposes and objectives’” of the Transformation Order. Tarrant Regional Water Dist. v. Herrmann, 656 F.3d 1222, 1241-42 (10th Cir. 2011), aff'd 133 S. Ct. 2120 (2013).
In order to further cany out the 1996 Act’s universal service goals, the Transformation Order determined that intercarrier compensation and the FUSF had to change to more effectively and efficiently achieve the goals of the National Broadband Plan, including transforming today’s telephone networks to all-IP (internet protocol) networks. Transformation Order, 26 FCC Red at 17872-73, ¶¶ 648, 655. To encourage the expansion of broadband and mobility coverage into areas where such services still did not exist and to encourage current carriers to modernize the telecommunications system, the FCC determined that the industry had to change to a bill-and-keep system. Transformation Order, 26 FCC Red at 17872-73,17904, ¶¶ 648, 650, 736. In other words, a carrier must first look to its own subscribers to cover the costs of the network and only then receive explicit universal service support where necessary. The FCC abandoned the calling-party-network-pays model that dominated intercarrier compensation regimes of the last century. Transformation Order, 26 FCC Red at 17676, 17904, ¶ ¶ 34, 737. Intercarrier compensation charges are paid from one telecommunications carrier to another to originate, transport, and/ or terminate telecommunications traffic. Intercarrier compensation payments include access charges and reciprocal agreements.
In discussing its intercarrier compensation reforms and the transition to the bill-and-keep methodology, the FCC specifically discussed the overlapping federal and state roles. One option the FCC considered was permitting the states to set the transition and recovery mechanism for intrastate charges while the FCC would do so for interstate charges; the FCC would also provide FUSF to offset LECs’ reduced interstate revenues. The second option considered was for the FCC to determine the transition path for both interstate and intrastate traffic, while assuming “the burden” of FUSF recovery for both interstate and intrastate revenues lost due to reform. Transformation Order, 26 FCC Red at 17928, ¶ 788.
The FCC ultimately concluded that a uniform, national framework was the best option for transitioning intercarrier compensation to a bill-and-keep methodology; concomitantly, the FCC would provide an accompanying federal recovery mechanism, including recovery of intrastate losses, because states would not set the transition for intrastate rates. “Doing so takes a potentially large financial burden away from the states.” Transformation Order, 26 FCC Red at 17929, ¶ 790. “[The FCC’s] recovery mechanism will provide carriers with recovery for reductions to eligible interstate and intrastate revenue. As a result, states will not be required to bear the burden of establishing and funding state recovery mechanisms for intrastate access reductions.” (Emphasis added.) Transformation Order, 26 FCC Red at 17932, ¶ 795. This language suggests the Commission was correct that the Transformation Order preempts K.S.A. 2014 Supp. 66-2005(c)(l).
The crux of the issue is whether this latter provision—that the FCC’s recovery mechanism would assist with both interstate and intrastate revenue losses and that states will not be required to fund state recovery mechanisms—actually bars states such as Kansas from assisting with the recovery of intrastate revenue losses despite the creation of the Connect America Fund and the allowance of access recovery charges.
At the same time, however, the FCC determined that the FUSF system established with the 1996 Act was not effective in encouraging the best technological expansion by carriers receiving support for high-cost areas. The Transformation Order established a support budget and altered the FUSF program to control costs and improve accountability by ensuring that high-cost support mechanisms were able to verify that federal funding was used for its intended purposes and accomplishing the intended results. Transformation Order, 26 FCC Red at 17679, ¶ 46. One of the goals of the reformed FUSF was to provide universal service without imposing an excessive burden on consumers and businesses that ultimately pay to support tire fund. Transformation Order, 26 FCC Red at 17682, ¶ 57.
Consequently, the Transformation Order significantly altered how eligible telecommunications carriers received universal service subsidies. The Transformation Order replaced the FUSF with two other support mechanisms: the Connect America Fund (CAF) and, as we have previously noted, an access recovery charge. The CAF would be funded by the federal government. To ensure the funds were expended in areas where there were currently no services, the CAF did not provide support in areas where unsubsidized competitors were providing broadband meeting FCC standards, ensuring that CAF support would be provided only in areas where a federal subsidy was necessary to ensure the build-out and operations of such networks. Transformation Order, 26 FCC Red at 17673, 17827, ¶¶ 24, 503. Rate-of-return RLECs would not be entitled to CAF support unless they offered broadband services of the quality required by the Transformation Order to any customer in their service area upon reasonable request. Transformation Order, 26 FCC Red at 17674, ¶ 26. LECs may also recover losses due to the reduced terminating access fees through a monthly access recovery charge to their customers. Under the access recovery charge process, the LEC may increase residential and business line rates through incremental price increases to those customers. Transformation Order, 26 FCC Red at 17677, ¶ 36.
Although the FCC created these alternative support mechanisms, it recognized that these intercarrier compensation reforms were not revenue neutral: access recovery charges and the CAF would not totally replace lost revenues caused by the reforms in light of the changing nature of services customers seek. Transformation Order, 26 FCC Red at 17678, ¶ 38. The Transformation Order specifically stated that when subsidies were necessary, they would come “from the [CAF], and/or state universal service funds.” (Emphasis added.) Transformation Order, 26 FCC Red at 17904, ¶ 737. Although various RLECs, including some of the parties in this case, objected to this portion of the proposed Transformation Order, the FCC determined that any claimed potential threats to financial viability for these companies would be evaluated on a case-by-case basis. Parties concerned about their financial viability could file a petition for waiver to show the FCC that additional assistance was needed to ensure service was provided. Transformation Order, 26 FCC Red at 17839, ¶ 539 & n.901; see also In re FCC 11-161, 753 F.3d 1015 (10th Cir. 2014) (detailed summary of the Transformation Order contained therein).
Therefore, although the Transformation Order adjusted the federal-state relationship in telecommunications regulation, it did not abolish the two-tier system. In fact, early in the Transformation Order, the FCC recognized that “[universal service funds] and [inter-carrier compensation] are both hybrid state-federal systems” and that tírese programs will evolve and “traditional roles [will] shift.” Transformation Order, 26 FCC Red at 17671, ¶ 15. In discussing the bill-and-keep process, the Transformation Order noted that when additional subsidies are necessaiy, “such subsidies will come from the [CAF], and/or state universal service funds(Emphasis added.) Transformation Order, 26 FCC Red at 17904, ¶ 737.
In recognition of the significant change in the recovery mechanism under the Transformation Order, the FCC granted rate-of-return carriers—such as the RLECs—9 years to transition to a complete bill-and-keep system. Transformation Order, 26 FCC Red at 17676, 17905, ¶¶ 35, 739. The revised recoveiy mechanisms for these carriers incentivized them to invest in more efficient technology, alter their operations to create more efficiencies—such as sharing switches—and ensure their customers do not pay below-market rates. Transformation Order, 26 FCC Red at 17983, ¶ 900. The Transformation Order was also concerned with the risk of unconstrained escalation of the CAF by burdening end-user customers and universal service contributors. Transformation Order, 26 FCC Red at 17985, ¶ 903. It noted that over time, the total high-cost support for rate-of-return carriers had increased, while such support for carriers that had moved to price cap regulation had declined. Transformation Order, 26 FCC Red at 17985, ¶ 903, n.1763. All this pointed to a lack of intent to completely preempt state universal service funding.
Moreover, in support of their claim that the FCC did not intend to preempt KUSF funding to ameliorate the effects of the Transformation Order, the RLECs cite to an order released by the FCC on August 7, 2014, to the Federal-State Joint Board on Universal Service. In that referral, the FCC asked the Joint Board to “provide recommendations on how the Commission should modify the universal service contribution methodology.” The request was for the Joint Board to “develop recommendations, with a particular focus on how any modifications to tire contribution system would impact achievement of the statutory principle drat there be state as well as federal mechanisms to preserve and enhance universal service.” In the Matter of Federal State Joint Board on Universal Service, 29 FCC Red 9784, ¶ 1 (2014).
The RLECs also rely on an order of the Wireline Competition Bureau (WCB), to whom the FCC has delegated tire implementation of various facets of the Transformation Order. In In the Matter of Connect America Fund, 28 FCC Red 5733 (2013), the WCB considered a petition filed by various Texas telecommunications carriers seeking a waiver of the CAF rule capping per-line support to $250 per month, the benchmark rule limiting high-cost loop support, and the rules involving interstate common line support as set fordr in the Transformation Order. The WCB dismissed the petitions without prejudice because “alternative remedies and additional support are available through a state process .... [and] a number of carriers have already sought relief before the Public Utility Commission of Texas.” 28 FCC Red 5733, ¶ 1. The WCB went on to state:
“We commend Texas for creating a process to address any unique concerns for carriers in the state of Texas as a result of recent universal service reforms. We consider these efforts to be a positive development for federal-state coordination and partnership, and encourage other states to consider similar approaches as states may be best positioned to address any unique circumstances for carriers in their state.” 28 FCC Red at 5733, ¶ 2.
In that 2013 case, Texas had adopted a statute which provided a state mechanism for LECs to replace reasonably projected changes in revenue caused by an FCC order or policy change. The statute was designed to replace a change in FUSF revenue or changes in costs or revenue assigned to the intrastate jurisdiction. Tex. Utilities Code Ann. § 56.025(c) (West 2007). The mechanism required an increase in customer rates “if the increase would not adversely affect universal service” or use of the universal service fund. Tex. Utilities Code Ann. § 56.025(f) (West 2007). The Texas case involved payments for costs of specific high-cost physical facility mechanisms. It is unclear from the Texas statutes, however, whether they recognized rate-of-retum reimbursement under their regulatory scheme.
Unfortunately for the Commission, its only rejoinder is to attempt in its brief to distinguish the WCB decision because it involved other reforms made under the Transformation Order and emphasize that K.S.A. 2014 Supp. 66-2005(c)(l) is in direct opposition to paragraphs 737 and 790 of the Transformation Order. Undermining the Commissions view, however, is paragraph 737 that states when subsidies are necessaiy, they will come “from the [CAF], and/or state universal service funds.” (Emphasis added.) See also Transformation Order, 26 FCC Red at 17929, ¶ 790 (the FCC would provide an accompanying/eifend recovenj mechanism, including recovery of intrastate losses, taking “a potentially large financial burden away from the states”)- At present, the RLECs appear to have the better argument-—at least during the transition phase.
At least one other FCC decision seems to acknowledge that state support mechanisms exist to help with revenues lost due to changes made by the Transformation Order. In the FCC report addressing the implementation of the Transformation Order, the FCC rejected arguments that it should increase the high-cost universal service budget in order to better advance broadband deployment in rural areas. The FCC recognized it had to balance the goals of deployment while ensuring an excessive burden was not placed on all ratepayers. In the Matter of Connect America Fund, 29 FCC Red 15644, ¶ 27 (2014). In addition, the FCC noted that “the states have an important role to play in advancing universal services goals. We welcome and encourage states to supplement our federal funding, whether through state universal service funds or other mechanisms.” 29 FCC Red at 15644, ¶ 28. In its footnote, the FCC cited 47 U.S.C. § 254(b)(5) and § 257(f) (2012) as permitting states to create and take action to preserve and advance universal service goals. 29 FCC Red at 15644, ¶ 28, n.70; see also Qwest Corp., 258 F.3d at 1203 (“The [1996] Act plainly contemplates a partnership between the federal and state governments to support universal service. . . . [and] it is appropriate—even necessary—for the FCC to rely on state action.”). Accordingly, it would appear to us that the Transformation Order does not bar Kansas from assisting with tire recovery of intrastate revenue losses despite the creation of the CAF and the allowance of access recovery charges during tire transition period.
However, the question remains as to whether the FCC’s concerns in controlling the growth of the CAF or the Commission’s desire to more actively push rate-of-return companies to greater efficiencies creates a conflict preemption issue with respect to Kansas statutes. K.S.A. 2014 Supp. 66-2005(c)(l)—the state law at issue—was amended by the legislature after tire Transformation Order to state:
“Subject to the commissions approval, all local exchange carriers shall reduce intrastate access charges to interstate levels as provided herein. . . . Each rural telephone company shall adjust its intrastate switched access rates on March 1 of each odd-numbered year to match its interstate switched access rates, subject to the following:
(1) Any reduction of a rural telephone company’s cost recoveiy due to reduction of its intrastate access revenue, except such revenue recovered from another support mechanism, shall be recovered from the KUSF.” (Emphasis added.)
This statute continues to provide support to rural telephone companies for cost recovery lost due to reduced intrastate access revenue. As the RLECs argue, they have been required under Kansas law to bring their intrastate rates in parity with interstate rates since the KTA was adopted. The Transformation Orders reduction of terminating access revenue and its capping of switching access revenue certainly will have an impact on an RLECs revenue stream. A logical reading of K.S.A. 2014 Supp. 66-2005(c)(l), however, infers that the RLECs will be required to seek support from the CAF and/or federally allowed access recovery charges before seeking KUSF distributions. Of course, the granting of CAF funds requires the RLECs to expand their broadband service (if they have not already done so). In addition, the Transformation Order expresses concern that “retaining rate-of-return regulation ... risks perpetuating the] isolated, ILEC-as-an island operation,’ thus increasing the costs subject to recoveiy to the extent. . . each individual incumbent LEC purchases its own facilities, rather than sharing infrastructure with other carriers.” Transformation Order, 26 FCC Red at 17985, ¶ 903.
Based upon the Transformation Order’s goals and rationales, we acknowledge it is not unreasonable to conclude that using KUSF dollars to make up for revenues lost due to the Transformation Order stands as an obstacle to the FCC’s desire to make telecommunications more competitive, to encourage the distribution of the most highly technological services available, and to encourage efficiencies. This is particularly so since nothing in the record explains why Kansas has so many RLECs for a state of its population and geographic size. Unless these RLECs merge, transition to new technologies, or implement price cap regulations, certainly KUSF fees will continue to climb as long as K.S.A. 2014 Supp. 66-2005(c) (1) is in effect.
However, the recent FCC/WCB opinions seem to lead to a different conclusion. The Transformation Order expressly refused to preempt state obligations regarding voice service, including Carrier of Last Resort (COLR) obligations. Transformation Order, 26 FCC Red at 17694, ¶ 82. The Transformation Order recommended that each state review its respective regulations in light of the order. Significantly, the Transformation Order states:
“[S]tates could consider providing state support directly to the incumbent LEC to continue providing voice service in areas where the incumbent is no longer receiving federal high-cost universal service support or, alternatively, could shift COLR obligations from tire existing incumbent to another provider who is receiving federal or state universal service support in the future.” Transformation Order, 26 FCC Red at 17694, ¶ 83.
Similarly, in discussing bill-and-keep arrangements, the Transformation Order reasoned that to the extent additional revenues are needed beyond end-user payments, “such subsidies will come from [CAF], and/or state universal service funds.” Transformation Order, 26 FCC Red at 17904, ¶ 737.
Finally, the Transformation Order gave other flexibility to state regulators. Although the Transformation Order affected terminating access rates and capped some other intrastate rates, it did not cap intrastate originating access rates for rate-of-return carriers. The Transformation Order noted that states were free to adjust originating access rates but they would be obligated to support any recovery that would be necessitated by that action. Transformation Order, 26 FCC Red at 17940, ¶ 813 & n.1529. Similarly, this court has recognized that in calculating an RLEC s entitlement to KUSF support, tire Commission has the authority to determine if the company’s debts, equity ratio, and expenses are reasonable and prudent. See, e.g., Wheat State Telephone Co., Inc. v. Kansas Corporation Comm’n, No. 91,640,2004 WL 895534, at *10 (Kan. App. 2004) (unpublished opinion) (affirming Commissions determination on return on equity and hypothetical debt/equity ratio).
Based upon the authority the Commission has in ensuring that an RLECs costs and expenses are reasonable and prudent, and its ability to evaluate any RLEC’s claims for KUSF distributions, we conclude K.S.A. 2014 Supp. 66-2005(c)(l) does not provide a significant obstacle to warrant preemption—at least during the transition period. Although not specifically stated in the Transformation Order, the FCC may well have believed that the needs of LECs would vaiy from state-to-state and that it was up to the individual states to determine if additional state support was necessary within its boundaries. Absent evidence that KUSF is being used to undermine the FCC’s goals of expanding broadband deployment, ensuring more efficiencies as a condition of FUSF support, and transitioning to a bill-and-keep marketplace, we must conclude the Commission and district court erred in finding the Transformation Order preempted state aid mechanisms to assist RLECs in carrying forth with obligations under the Transformation Order. In light of the fact that the federal transition for RLECs is scheduled to take place over 9 years from 2011, it does not appear at present that K.S.A. 2014 Supp. 66-2005(c)(l) is expressly or impliedly preempted by the Transformation Order.
Did the District Court and Commission Err in Interpreting K.S.A. 2014 Supp. 66-2008?
The RLECs also take issue with the Commission’s ruling that support for rate-of-return carriers in Kansas could be based on less tiran each carriers “embedded costs, revenue requirements, investments and expenses” as provided in K.S.A. 2014 Supp. 66-2008(e) (1), asserting that the Commissions action was arbitrary and capricious. In the 004 Docket, the Commission simply concluded that the starting point for calculating KUSF support would be the carrier’s embedded costs, etc. The RLECs argue that the $30,000,000 statutory cap adopted in 2012 did not change this requirement and was contrary to this courts prior decision in Bluestem I. See Bluestem Telephone Co. v. Kansas Corporation Comm’n, 33 Kan. App. 2d 817, 823-24, 109 P.3d 194, rev. denied 280 Kan. 981 (2005).
As noted above, a Commission order is lawful as long as the order falls “ ‘within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. [Citation omitted.]’” Farmland Industries, Inc. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 172, 175, 943 P.2d 470, rev. denied 263 Kan. 885 (1997) (quoting Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380, 595 P.2d 735, rev. denied 226 Kan. 792 [1979]). A Commission order “is considered reasonable if it is supported by substantial competent evidence. [Citation omitted.] The Commissions action is arbitrary and capricious if it is unreasonable or without foundation in fact.” Citizens Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 47 Kan. App. 2d 1112, 1124, 284 P.3d 348 (2012). The burden rests with the RLECs to establish the Commissions order is arbitrary or unlawful. See Clawson v. Kansas Dept. of Agriculture, 49 Kan. App. 2d 789, 795, 315 P.3d 896 (2013).
The statute in question, amended in 2013, states in relevant part:
"(e)(1) For each local exchange carrier electing pursuant to subsection (b) of K.S.A. 66-2005 ... to operate under traditional rate of return regulation, all KUSF support, including any adjustment thereto pursuant to this section shall be based on such carrier’s embedded costs, revenue requirements, investments and expenses. Until at least March 1, 2017, any modification of such support shall be made only as a direct result of changes in those factors enumerated in this subsection. Nothing in this subsection shall prohibit the commission from conducting a general investigation regarding effects of federal universal service reform on KUSF support and the telecommunications public policy of the state of Kansas as expressed in K.S.A. 66-2001....
"(2) Notwithstanding any other provision of law, no KUSF support received by a local exchange carrier electing pursuant to subsection (b) of K.S.A. 66-2005, and amendments thereto, to operate under traditional rate of return regulation shall be used to offset any loss of federal universal service fund support for such earner, except that such limitation on KUSF support shall not preclude recovery of reductions in intrastate access revenue pursuant to subsection (c) of K.S.A. 66-2005, and amendments thereto.
“(3) Notwithstanding any other provision of law, the total KUSF distributions made to all local exchange carriers operating under traditional rate of return regulation pursuant to subsection (b) of K.S.A. 66-2005 ... shall not exceed an annual $30,000,000 cap. A waiver of tire cap shall be granted based on a demonstration by a carrier that such carrier would experience significant hardship due to force majeure or natural disaster as determined by the commission.” (Emphasis added.) K.S.A. 2014 Supp. 66-2008.
The record shows that the only attempt by the Commission to apply the provisions in K.S.A. 2014 Supp. 66-2008 was its acceptance of the RLECs' adjustments and tariff changes filed in the 004 Docket. Also in that docket, the Commission lowered the estimated contributions due for tire next period of KUSF funding. The RLECs have not challenged the reductions imposed, nor have they claimed that the KUSF calculations resulted in subsidies less than their embedded costs and revenue requirements. Significantly, nothing in the orders from the 170 Docket or the 004 Docket states that the Commission intended to limit an RLECs future recovery to a specific percentage of its embedded costs and revenue requirement.
The RLECs contend, however, that the new interpretation of K.S.A. 2014 Supp. 66-2008 violates the statute and this court’s Bluestem I decision. The facts in Bluestem I, however, were significantly different. In that case, the Commission decided in a generic docket that KUSF distributions would be made on a per-line basis. Towards the end of that docket, the Commission started another generic docket involving only RLECs. That docket was resolved by a stipulation proposed by the parties and adopted by the Commission. After the Commissions decision, the Kansas Legislature codified K.S.A. 2002 Supp. 66-2008(e). 33 Kan. App. 2d at 820.
On appeal of the original docket, this court addressed the meaning of K.S.A. 2002 Supp. 66-2008(e). Contrary to the RLECs’ arguments, the court specifically stated that RLECs operating on a rate of return “must have their KUSF distributions computed on their embedded costs, revenue requirements, investments, and expenses.” (Emphasis added.) 33 Kan. App. 2d at 824. Nothing in Bluestem I mandates that KUSF be paid to fully fund an RLEC’s embedded costs.
The RLECs raise a number of arguments that the Commission’s ruling would create an absurd result and therefore was an improper interpretation of the statute. They also spend a considerable portion of their brief arguing that the statutory cap may require them to pay an “arbitrary percentage” of an RLEC’s embedded costs. This argument appears to us as an anticipated battle against a potential unknown foe. While the Commission argues that such actions might arise due to the new statutory cap on the size of KUSF, none of the parties cite to any regulation or actual action by the Commission to impose an across-the-board percentage in determining an individual RLECs KUSF entitlement.
It is difficult for us to evaluate die abstract interpretation of a statute in a vacuum. As recognized by our Supreme Court, “issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent.” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896, 179 P.3d 366 (2008). “The doctrine of ripeness is ‘designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.’” [Citations omitted.] To be ripe, issues must have taken shape and be concrete rather than hypothetical and abstract. [Citation omitted.]” Shipe v. Public Wholesale Water Supply Dist. No, 25, 289 Kan. 160, 170, 210 P.3d 105 (2009). The requirement of ripeness of a legal issue is required by Article III of the United States Constitution. See Morrison, 285 Kan. at 891-92. This is especially true since the legislature has mandated that until at least March 1, 2017, any modification of KUSF support shall be made only as a direct result of changes in those factors enumerated in this subsection. K.S.A. 2014 Supp. 66-2008(e)(l).
The RLECs also assert that the Commissions current interpretation violates the concept of traditional rate-of-return ratemaking to the point of constituting a taking of the RLECs’ property. We are unpersuaded by this argument as it appears to be based upon a faulty premise. While tire KTA permitted LECs to choose between price-cap and rate-of-return regulation, the KTA was not premised on tire standard monopolistic models of other utility settings. The KTA, like the 1996 Act, was designed to improve competition, not preserve existing monopolies. This court has long recognized that the Commission has authority to determine whether expenses, debt-to-equity ratios, and other cost components are prudently incurred or determined. See, e.g., Columbus Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 828, 836, 75 P.3d 257 (2003) (reasonableness of rate case expense); Wheat State Telephone Co., Inc., 2004 WL 895534, at *9 (use of hypothetical debt-equity ratio).
The policies of the KTA, like that of the federal statute, are consumer-focused to ensure that Kansans have access to first-class telecommunications infrastructure at an affordable price, that consumers realize the benefits of competition, that the range of services are comparable in urban and rural areas, and that consumers are protected from practices inconsistent with the public interest, convenience, and necessity. K.S.A. 66-2001. By focusing on encouraging competition, die principles of truly “traditional” rate-of-return ratemaking are not as rigid in the telecommunications industiy. The RLECs confuse the requirement that KUSF provide sufficient support for universal service within a market in which telephone service providers compete for customers, which federal law mandates, with a guarantee of economic success for all providers; the latter guarantee conflicts with the federal and state focus on encouraging competition. See Alenco Communications, Inc. v. F.C.C., 201 F.3d 608, 625 (5th Cir. 2000).
Recent amendments to the KTA evidence the legislature’s agreement that the “traditional” rate-of-return paradigm is not as fixed in the telecommunications industry. For example, K.S.A. 2014 Supp. 66-2008(e)(2) specifically precludes LECs from recovering revenue losses caused by the Transformation Order except for intrastate access revenues recoverable under K.S.A. 2014 Supp. 66-2005(c) (1). Likewise, the statutory cap for the KUSF also signals that there are limits to what subsidies other telecommunications carriers (and their customers) will have to continue to provide to RLECs. See K.S.A. 2014 Supp. 66-2008(e).
Finally, the RLECs fail to establish how the Commission has taken any action to compensate them less than required by the KTA or “traditional ratemaking.” Thus, for the reasons we have articulated, the RLECs’ challenge to the Commissions rulings regarding reimbursement for their reasonable embedded costs and revenue requirements is not ripe for adjudication. Accordingly, we vacate the district court’s order approving the Commission’s ruling that support for rate-of-return carriers could be less than each carrier’s “embedded costs, revenue requirements, investments and expenses” as provided in K.S.A. 2014 Supp. 66-2008(e)(l) and remand the matter to the district court with instructions for it to dismiss that part of the petition.
The judgment of the district court affirming the Commission’s orders is reversed in part, vacated in part, and remanded with directions. | [
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Denied.
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The opinion of the court was delivered by
BEIER, J.:
David Monda appeals the district court’s summary denial of his motion to correct illegal sentence. We affirm.
Factual and Procedural Background
In May 1995, a jury convicted David Monda of first-degree murder. Based on the evidence presented at trial, which included the fact that the murder victim had been struck in the head with a claw hammer at least 18 times, the district court judge .fpund that the murder had been committed in an especially heinous, atrocious, or cruel manner—an aggravating factor under K.S.A. 1994 Supp. 21-4636. The district judge imposed a hard 40 life sentence as a result. Because Monda had not yet seen receipts supporting a requested restitution amount, the district judge gave the parties 30 days to determine restitution and said that he would hold a hearing if there was a dispute over the restitution amount. By way of a journal entry filed nearly 5 months later, the district judge set amounts for restitution and court costs. This court affirmed Mon-cla’s conviction and sentence on direct appeal. State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997).
In January 2013, Monda filed a pro se motion to correct illegal sentence. In the motion, Monda claimed his sentence was illegal because: (1) insufficient evidence supported the district judge’s finding of an aggravating factor supporting imposition of a hard 40 life sentence; (2) the district judge “intentionally structured defendant’s case through bias, improper and legally unsound rulings, to ensure [Monda] received a Hard-Forty year sentence in violation of [his] due process rights”; (3) the district judge lacked jurisdiction to sentence defendant because his right to a fair trial and due process rights were violated; and (4) tire district judge lacked jurisdiction to impose restitution, court costs, and other fees.
Monda’s motion was summarily denied, and Monda took a timely appeal to this court.
Discussion
We recently stated the applicable standards of review in State v. Gilbert, 299 Kan. 797, 326 P.3d 1060 (2014).
"An appellate court reviews a district court’s summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504 de novo because the reviewing court has the same access to the motions, records, and files. [Citation omitted.] This court, like the district court, must determine whether the documents conclusively show the defendant is not entitled to relief. [Citation omitted.]
"Whether a sentence is illegal is a question of law over which this court has unlimited review. This court has defined an ‘illegal sentence’ under K.S.A. 22-3504 as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]” 299 Kan. at 801 (citing State v. Trotter, 296 Kan. 898, 901-02, 295 P.3d 1039 [2013]).
Under K.S.A. 22-3504(1),
“[t]he court may correct an illegal sentence at any time. . . . The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
When presented with a motion to correct illegal sentence, a district judge should conduct an initial examination of the motion to determine if it raises substantial issues of law or fact. Makthepharak v. State, 298 Kan. 573, 576, 314 P.3d 876 (2013). If it does not, i.e., if the motion, files, and records of the case conclusively show the defendant is not entitled to relief, the motion may be denied summarily without a hearing or appointment of counsel. 298 Kan. at 576.
Monda invites this court to reconsider its longstanding precedent that allows a district judge to deny a motion to correct illegal sentence summarily if it fails to state any substantial issues of law or fact. Monda argues that the plain language of the statute and public policy are on his side. This court has consistently rejected Moncla’s plain language argument, see Makthepharak, 298 Kan. at 576, and we do so again today.
Moncla’s public policy argument suggests that many motions to correct illegal sentence “that have merit are often lost in the sea of motions that may not have merit.” He appears to believe that the remedy for this situation would be a ruling from this court requiring a hearing and appointment of counsel for all such motions, which would give the legislature an incentive to change the wording of the statute to expressly preclude motions not raising substantial issues of law or fact. Because our many rulings that such motions are bound to be unsuccessful have, according to Monda, been spectacularly unsuccessful, i.e., failed to stem a tide of mer-itless motions, we are doubtful that baiting tire legislature into making tire change in statutory language that Monda suggests would discourage such motions.
Monda next argues that his motion met the requirement of stating a substantial issue by “rais[ing] issues of law which are supported by appropriate legal citations” and “[b]y laying out . . . arguments which have previously been upheld by the appellate courts.” Monda asserts that it need not be clear at the outset or conclusion of a district judge’s initial examination of a motion that the defendant will prevail before appointment of counsel and a hearing are required. Monda is correct that a motion does not have to be guaranteed to be successful before prompting appointment of counsel and a hearing, but our review of the motion, files, and records of the case conclusively demonstrate that Monda cannot meet even the lesser threshold of stating a substantial issue. See Makthepharak, 298 Kan. at 576. The fact that a motion cites cases and presents a legal argument is not necessarily enough to avoid summary disposition.
We now turn to the merits of Moncla’s motion.
Monda first argues drat die sentencing judge erred when he determined that die murder was committed in an especially heinous, atrocious, or cruel manner. Although the judge relied on the fact that the victim had been struck multiple times witii a hammer, Monda argues that the evidence was insufficient to show that the victim was alive during any strike after the first. Monda contends that “if the victim died instantly from the first blow to the head, it [cannot] be said that there was a high degree of pain or prolonged suffering.” Monda argues that a lack of sufficient evidence makes his sentence illegal and created a jurisdictional defect.
The State responds that Monda’s claim is a “fact-based challenge to the evidence supporting the court’s sentencing decision” that does not fit into this court’s narrow definition of illegal sentence. The State further argues that this claim should have been raised on direct appeal, and it has therefore been waived or abandoned.
The only one of the three types of illegal sentence that a hard 40 unsupported by sufficient evidence of an aggravator maybe able to satisfy is the second: It is possible that it could be described as “a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment.” Here, the district judge’s determination that Monda should receive a hard 40 turned on whether any aggravating circumstances were outweighed by any mitigating circumstances, as required in the governing statute. K.S.A. 1994 Supp. 21-4635(c). And the district judge explicitly found the existence of an aggravating factor under K.S.A. 1994 Supp. 21-4636; the evidence of killing by daw hammer, regardless of which of numerous blows was fatal, amply supported his decision that the murder was committed in an especially heinous, atrocious, or cruel manner. The sentencing statutes did not require the district judge to make further explicit statements about the way in which the aggravator outweighed any mitigators. See State v. Coleman, 271 Kan. 733, 742, 26 P.3d 613 (2001). Moncla’s conviction for first-degree murder bestowed jurisdiction to sentence upon the district court, and the judge’s pronounced sentence conformed to the statutory requirements.
Monda also argues that his sentence is illegal because a judge rather than a juiy determined the existence and weight of the aggravating factor that led to the hard 40. He cites Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 2162-63, 186 L. Ed. 2d 314 (2013), which held that, under the Sixth Amendment, any fact that increased a sentence must be found by a juiy rather than a judge. “Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.” State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007); see Verge v. State, 50 Kan. App. 2d 591, 598-99, 335 P.3d 679, 684 (2014) (motion to correct illegal sentence based on Alleyne improper constitutional challenge to sentence).
Monda attempts to bring his sentence under the much later Alleyne ruling by arguing that “sentencing in the current case is not final.” Finality is prevented, he asserts, because restitution was a part of his sentence and its amount was not set at his sentencing hearing. We disagree. Because the district judge held open restitution at sentencing, Moncla’s sentence was not final at the conclusion of the hearing. See State v. Hall, 298 Kan. 978, 987, 319 P.3d 506 (2014). The State does not dispute that a second hearing did not occur, and a final order of restitution does not appear in the record. The finality of Moncla’s sentence, however, occurred no later than the filing of the journal entry memorializing the restitution amount. See State v. Brown, 299 Kan. 1021, 1026-27, 327 P.3d 1002 (2014) (restitution left open at sentencing, later set in final order of restitution, memorialized in journal entiy; judgment final). Moncla’s sentence has been final since well before his direct appeal was disposed of. See State v. Frierson, 298 Kan. 1005, 1021, 319 P.3d 515 (2014).
Moncla’s last argument is that the setting of the restitution amount did not occur in open court with him present, and thus its imposition constitutes an illegal sentence. We reject this argument. As in Frierson, we are satisfied that “the spirit, if not the letter” of tire proper procedure was followed. 298 Kan. at 1021. Although the procedural history of this case differs in certain respects from that of Frierson, the differences are not so great that the district court was deprived of jurisdiction. And, to the extent this argument rests upon a constitutional claim, again, such a claim is not properly raised in a motion to correct illegal sentence.
Conclusion
Moncla’s motion to correct illegal sentence did not state a substantial issue of law or fact, and we therefore affirm the district judge’s summary denial. | [
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Malone, C.J.:
Jeremy A. Chapman appeals following his convictions of two counts of identity theft and two counts of theft after prior conviction. Chapman raises five issues on appeal; (1) The district court erred in denying his motion to suppress; (2) the prosecutor committed misconduct during closing argument; (3) the district court erred in failing to give a multiple acts instruction; (4) the district court erred in instructing the juiy on reasonable doubt prior to the introduction of evidence; and (5) the district court violated his constitutional rights when it sentenced him to an increased sentence, based upon his criminal history, without requiring the State to prove the criminal history to a jury beyond a rea sonable doubt. We agree with Chapman that the district court erred in denying his motion to suppress evidence seized during the search of his house. Thus, we reverse and remand with directions to grant Chapman’s motion to suppress.
On the morning of August 1, 2012, Deputy Reinhardt Hay of the Sedgwick County Sheriff s Office conducted a routine traffic stop in Wichita. Officer Maurice Mitchell of the Wichita Police Department (WPD) arrived to assist with the stop. The driver of the vehicle, later identified as Lucas Arnold, had multiple outstanding warrants for his arrest. During a subsequent search of the vehicle’s glove box, Hay found checks, identification cards, Social Security cards, and birth certificates with different names, addresses, and birth dates on them. Mitchell ran some records checks and informed Hay that many of the documents found inside the glove box had been reported stolen.
As Hay searched the vehicle, Arnold called out to Mitchell from the back of the patrol car and said he wanted to “work something out.” Arnold said that he knew a man named Jeremy who was making fake IDs and personal checks. Hay and Mitchell transported Arnold to be interviewed by Detective Roger Bieberle of the WPD’s financial crimes section. During the interview, Arnold told Bieberle that a man named Jeremy had made the fake IDs found in the glove box. Arnold said that Jeremy lived in a green house near tire northeast comer of Mount Vernon and Lulu Streets. Arnold told Bieberle that Jeremy kept “all lands” of checks and IDs in a basket beside a pool table in his basement.
Mitchell, Bieberle, and several other WPD officers drove to the area of Mount Vernon and Lulu Streets and found a green house matching the description provided by Arnold. The officers ran a check and learned that the house was registered to Jeremy Chapman. The officers knocked on the door and a man answered. He identified himself as Jeremy and provided identification stating that his full name was Jeremy Chapman. Bieberle explained why the officers were there and asked Chapman if they could search the house. Chapman refused to grant the officers entry.
As Bieberle spoke with Chapman, Mitchell ran a records check and learned that Chapman was on parole. Mitchell contacted Chapman’s parole officer, David Evans, who verified that Chapman was on. parole and lived at the house where the officers were located. Mitchell explained that he had information that Chapman might be providing fake checks and IDs, and he told Evans that Chapman had refused a request to search his house. Evans told Mitchell that, due to a recent change in Kansas law, Chapman could not deny the officers permission to search if the officers possessed reasonable suspicion that he had committed a crime. Evans told Mitchell that he would call Chapman.
Evans telephoned Chapman, who by this time had shut the front door and gone back inside of his house. Evans told Chapman about the recent change in the law and explained that if the officers had reasonable suspicion of criminal activity, he needed to allow them to search his house. Following the phone call, Chapman came outside and reluctantly told the officers that, based on the information Evans had provided to him, they could enter his house and conduct a search.
During their search of the house, the officers found an open laptop computer and a laser printer in Chapman’s bedroom. On the laptop, there was an icon for Versa Check—a software program for making checks. The officers also found check stock paper in the same bedroom. In the kitchen/dining area, officers found a desktop computer that also had an icon for Versa Check. Bieberle searched Chapman’s basement but initially was unable to find the basket Arnold said would be located beside the pool table. When Bieberle inquired about the basket, Chapman walked to a basement storage room and pointed to a basket on a shelf. Inside the basket, Bieberle found many items, including checks, personal documents, and IDs belonging to several people other than Chapman or Arnold. The officers completed their search and seized evidence from Chapman’s residence relevant to their investigation of identity theft.
Chapman met with Evans at the parole office the day after the search. During this meeting, Evans requested that Chapman sign a written agreement acknowledging that he was subject to search by police officers based on reasonable suspicion of a parole violation or criminal activity. This meeting marked the first occasion in which Chapman acknowledged in writing the new conditions of his parole. When Evans asked Chapman about the previous days events, Chapman denied any wrongdoing.
The State ultimately charged Chapman with two counts of identity theft and two counts of theft after prior conviction. Before trial, Chapman filed a motion to suppress all evidence seized during the search of his house. In the, motion, Chapman claimed the search was unlawful because his consent was coerced. The State filed a response arguing that the search was authorized by K.S.A. 2012 Supp. 22-3717(k)(3).
The district court held an evidentiary hearing on Chapman’s motion to suppress. The State called Mitchell, Evans, and Bieberle as witnesses, while the defense called Chapman. After hearing the evidence, the district court denied Chapman’s motion. The district court did not address Chapman’s consent argument but ruled that die search was valid under K.S.A. 2012 Supp. 22-3717(k)(3).
Chapman’s case proceeded to a jury trial. The State called Hay, Mitchell, Evans, and Bieberle as witnesses, as well as five persons whose checks, IDs, or other personal documents were found in Chapman’s house. Chapman objected at trial to the introduction of evidence seized during the search of his house. Chapman testified in his own defense. He claimed that several days before the search of his house, Arnold came to his house and asked if he could store some items there, including the laser printer found in Chapman’s bedroom and the basket found in the basement. Chapman denied creating any of the checks or fake IDs found in his house and said that he never examined the contents of the basket Arnold left there.
The jury found Chapman guilty as charged. The district court imposed a controlling sentence of 18 months’ imprisonment, followed by 12 months’ postrelease supervision. Chapman timely appealed the district court’s judgment.
Chapman’s first issue on appeal is whether the district court erred in denying his motion to suppress evidence seized during the search of his house. Chapman’s argument is three-pronged. First, he contends that his grant of consent to search was invalid because his parole officer told him he had no choice in the matter. Second, he asserts that the police failed to comply with the requirements of K.S.A. 2012 Supp. 22-3717(lc)(3) when they conducted a search without Chapman’s written agreement. Finally, Chapman claims the police did not possess reasonable suspicion to believe that he was committing a crime. The State responds that the district court did not err in denying Chapman’s motion to suppress because the search was conducted with Chapman’s consent and pursuant to express statutory authority.
In reviewing the granting or denial of a motion to suppress evidence, the appellate court determines whether the factual findings underlying the district court’s suppression decision are supported by substantial competent evidence. The appellate courts do not reweigh the evidence or reassess the credibility of witnesses. The ultimate legal conclusion drawn from those factual findings is reviewed under a de novo standard. State v. Carlton, 297 Kan. 642, 645, 304 P.3d 323 (2013).
Did the police comply with the requirements of K. S.A. 2012 Supp. 22-3717(h)(3)?
The district court denied Chapman’s motion to suppress and found that the search of his house was valid under K.S.A. 2012 Supp. 22-3717(k)(3). Thus, the first step in analyzing whether the district court erred in denying the motion to suppress is to address the question of whether the police did, in fact, comply with the statutory requirements for the search. Chapman argues that the police did not comply with the requirements of K.S.A. 2012 Supp. 22-3717(k)(3) because he had not yet agreed in writing to the new condition of his parole when the officers appeared at his door to search his residence.
Under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, individuals have the right to be free from unreasonable governmental searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Special deference is given to the privacy of a person’s home. State v. Reno, 260 Kan. 117, 128, 918 P.2d 1235 (1996). Generally, the State must have a warrant based on probable cause to search a person’s home. See Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (a warrantless search of a home is per se unreasonable). However, the warrantless search of a person’s home may, under some circumstances, be deemed reasonable. See Thompson, 284 Kan. at 776 (listing several exceptions recognized in Kansas).
One such circumstance exists when the home being searched belongs to a parolee. Parolees have a greatly diminished expectation of privacy, even in their homes, particularly when the parolee has been informed that he or she may be subject to searches as a condition of release. Thus, the government’s intrusion on a parolee’s privacy maybe supported by a diminished level of suspicion. See State v. Haffner, 42 Kan. App. 2d 205, 208-09, 209 P.3d 734 (2009), rev. denied 290 Kan. 1098 (2010).
Before K.S.A. 22-3717 was amended in 2012, the Kansas Legislature had not authorized suspicionless searches of parolees. See State v. Bennett, 288 Kan. 86, 98, 200 P.3d 455 (2009). Under the amended statute, parolees shall agree in writing to be subject to search or seizure by a parole officer or a department of corrections officer at any time, with or without a search warrant and with or without cause. See K.S.A. 2012 Supp. 22-3717(k)(2). However, reasonable suspicion of a parole violation or criminal activity is still required if the search is conducted by a law enforcement officer other than a parole officer or a department of corrections officer. K.S.A. 2012 Supp. 22-3717(k)(3) states:
“Parolees and persons on postrelease supervision are, and shall agree in writing to he, subject to search or seizure by any law enforcement officer based on reasonable suspicion of the person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity. Any law enforcement officer who conducts such a search shall submit a written report to the appropriate parole officer no later than the close of the next business day after such search. The written report shall include the facts leading to such search, tire scope of such search and any findings resulting from such search.” (Emphasis added.)
At the hearing on the motion to suppress, Evans testified that upon learning of the 2012 statutoiy amendment, personnel at the state parole office devised a method by which to satisfy the statute’s requirement of a written agreement by the parolee. Evans testified that in order to ensure compliance with the statute, “we [the parole officers] were going to impose a special condition with the wording from the statute with each offender as we met with them.” According to Evans, tire updated copy of the parole conditions would include a new “wording” advising parolees that they were subject to searches by law enforcement officers based upon reasonable suspicion of a parole violation or criminal activity.
Though Evans had met with Chapman sometime in July 2012, Evans had not yet presented a copy of the updated parole conditions to Chapman at the time the police came to his house on August 1, 2012. Evans testified that when he called Chapman that day, “[he] recognized that the paperwork had not been taken care of, so [he] made it a point to explain to Mr. Chapman of what the law change actually did in terms of the impact that it was going to have in this particular situation.” Evans met with Chapman on August 2 and presented to Chapman for his signature the modified conditions of parole. Chapman signed the modified conditions of parole that day.
In denying the motion to suppress, the district judge specifically addressed the “shall agree in writing” requirement in K.S.A. 2012 Supp. 22-3717(k)(3):
“Reading of the statute, deleting the language about ‘and shall agree in writing’ to mean. Then reads, parolees and persons on postrelease supervision are subject to search or seizure by any law enforcement officer based on reasonable suspicion. ... To make that authority contingent upon a written agreement by the parolee, I think would nullify the intent of the statute. If the parolee never signed such an agreement, [the parolee] could never be subject to search, either by the parole officer or by law enforcement of the circumstances.
“I think that is more of a procedural suggestion to allow the process to be smoother, to allow fewer arguments, fewer issues raised post-search. The bottom line is, I think, the intent, regardless of the ‘shall agree in wilting’ to mean, the bottom line is parolees and persons on postrelease supervision are subject to search or seizure by any law enforcement officer based on reasonable suspicion.
“Quite honestly, ignorance of the provision of the law, as it might relate to law enforcement, does not relieve Mr. Chapman from not having to be subject to that law. Again, die lack of a written agreement does not nullify. The lack of written agreement did not nullify the search.”
Chapman now contends that because he had not yet executed an agreement to the new condition of his parole allowing any law enforcement officer to search his property based on reasonable suspicion, the search of his house was improper. The State asserts that nothing in the language of K.S.A. 2012 Supp. 22-3717(k)(3) indicates that the authority to search a parolee is contingent upon the parolee’s written approval.
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 (2014). 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). An appellate court must first attempt to ascertain the legislative intent through tire statutory language enacted, giving common words their ordinary meanings. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (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. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). 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. Phillips, 299 Kan. at 495.
The State points to State v. Anderson, 40 Kan. App. 2d 69, 188 P.3d 38 (2008), rev. denied 287 Kan. 766 (2009), to support its argument that the police officers’ authority to search Chapman’s house was not contingent upon his written agreement to the new conditions of his parole. In that case, Anderson was charged with violating the Kansas Offender Registration Act (KORA) because he failed to report to his local sheriff during the month of his birthday as required by K.S.A. 2006 Supp. 22-4904(d). The statute also required that the sheriff explain the registration procedure and then have each registrant sign an acknowledgment form. See K.S.A. 2006 Supp. 22-4904(a)(5). But when Anderson registered with the local sheriff, he did not have him sign the acknowledgment and allegedly did not explain that he had to report during the month of his birthday. The district court found that the sheriff s office had not provided Anderson with appropriate information and dismissed the criminal charge against him for failing to report.
On appeal, this court reversed the district court’s judgment, finding that K.S.A. 2006 Supp. 22-4904(a)(5) “[did] not even hint that a sheriffs duties to explain the registration process could be linked to the registrant’s potential criminal liability for violating the Act.” 40 Kan. App. 2d at 70. Consequently, this court found that the sheriff s failure to present Anderson with an acknowledgment and obtain his signature did not excuse Anderson’s failure to report. 40 Kan. App. 2d at 70-71.
On its surface, this court’s decision in Anderson seems to support the State’s contention that the lack of Chapman’s prior written agreement to his new parole conditions did not invalidate the search. However, we distinguish Anderson from Chapman’s case for two reasons. The first reason involves the structure of the applicable statutes. Anderson was charged with violating K.S.A. 2006 Supp. 22-4904(d) for failing to report during the month of his birthday. The statutory requirement for the sheriff to explain the registration procedure to each registrant was found in a different subsection of the statute, K.S.A. 2006 Supp. 22-4904(a)(5).
The fact that tire sheriff s duties to explain the registration process and Anderson’s requirement to report during the month of his birthday were contained in different subsections of the statute factored into this court’s conclusion that the sheriff s duties to explain the registration process could not be linked to Anderson’s criminal liability for violating the Act. See 40 Kan. App. 2d at 70. Here, the requirement that a parolee “shall agree in writing” to a search by law enforcement officers based on reasonable suspicion is set forth in one sentence in K.S.A. 2012 Supp. 22-3717(k)(3). In other words, based upon the statutory language and structure, there is a definite link between the parolee’s written agreement and the authority for the search as set forth in K.S.A. 2012 Supp. 22-3717(k)(3) that is not found in the KORA statute analyzed by this court in Anderson.
A second and even more important distinction is that, as the concurring opinion in Anderson noted, K.S.A. 2006 Supp. 22-4904(a)(5) required the sheriff to notify the offender of his or her duty to register under KORA, but nothing in the statute required the sheriff to notify the offender of the specific duty to report under the Act. See 40 Kan. App. 2d at 73 (Greene, J., concurring). Thus, there simply was no statutory obligation for the sheriff to explain to Anderson that he was required to report during the month of his birthday. See 40 Kan. App. 2d at 73. For this reason, we conclude that Anderson is not on point and does not support the State’s contention that Chapman was not required to agree in wilting to his new conditions of parole.
In upholding law enforcement officers’ searches of parolees’ persons or property, the United States Supreme Court has placed great emphasis on a parolee’s knowledge of the conditions of his or her parole. For instance, in Samson v. California, 547 U.S. 843, 850-57, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006), a law enforcement officer searched Samson for no reason other than the fact that he was a known parolee. Samson’s parole agreement stated that he was subject to search or seizure at any time by a parole or other peace officer, with or without a search warrant or probable cause. The Court upheld the search after balancing Samson’s privacy rights with the needs of California to supervise its parolees. It found significant the fact that Samson had signed an acknowl-edgement of the conditions of his parole, citing United States v. Knights, 534 U.S. 112, 119-20, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001):
“[A]s we found salient’ in Knights with respect to the probation search condition, the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer 'at any time,’ [citation omitted]—was ‘clearly expressed’ to petitioner. Knights, 534 U.S., at 119. He signed an order submitting to the condition and thus was ‘unambiguously’ aware of it. [534 U.S. at 119.] In Knights, we found that acceptance of a clear and unambiguous search condition ‘significantly diminished Knights’ reasonable expectation of privacy.’ [534 U.S. at 120.] Examining the totality of the circumstances pertaining to petitioner’s status as a parolee, ‘an established variation on imprisonment,’ [citation omitted], including tire plain terms of the parole search condition, we conclude that petitioner did not have an expec tation of privacy that society would recognize as legitimate.” Samson, 547 U.S. at 852.
This court considered bodi the Knights and Samson opinions in State v. Uhlig, 38 Kan. App. 2d 610, 170 P.3d 894 (2007), rev. denied 286 Kan. 1185 (2008), in which this court upheld a war-rantless search of a probationer s bedroom. A condition of Uhlig’s probation required him to submit to searches as directed by his court services officer (CSO). Pursuant to that condition, a CSO made a random visit to Uhlig’s home to ensure his compliance with the terms and conditions of probation. Uhlig admitted to the CSO that he delayed opening the door because he had been trying to hide his cigarettes. Possession of tobacco was a violation of Uhlig’s probation. The CSO searched Uhlig’s bedroom and found some ecstasy pills.
On appeal, this court found that Uhlig’s attempt to hide his cigarettes was an undeniable violation of his probation, which gave the CSO reasonable suspicion to search his room. The court pointed out that “Uhlig was aware of the terms and conditions of his probation since they were written in plain language.” 38 Kan. App. 2d at 616. Balancing the State’s need to supervise its probationers with Uhlig’s diminished expectation of privacy due to his status as a probationer, this court upheld the district court’s denial of Uhlig’s motion to suppress. 38 Kan. App. 2d at 617.
Two years later in Haffner, 42 Kan. App. 2d at 210-14, this court once again emphasized a parolee’s knowledge of the relevant condition of his parole when it upheld a warrantless search of his house. When Haffner was paroled, he signed an acknowledgment form verifying that he had been informed of the conditions of his release. One of the conditions was that a special enforcement officer (SEO) could conduct a search of a parolee’s person or property if suspicion existed that tire parolee had violated the conditions of his or her release. Haffner’s parole officer received word that one of his UAs tested positive for methamphetamine. The officer also received an anonymous tip indicating that Haffner might be manufacturing methamphetamine in his home. At the parole officer’s request, an SEO and several other officers conducted a parole search of Haffner’s house.
In upholding the search, this court reiterated that “[pjarolees have a greatly diminished expectation of privacy, even in their homes, particularly when the parolee has been informed that he or she may be subject to property searches as a condition of release.” 42 Kan. App. 2d 205, Syl ¶ 1. This court found that Haff-ner s positive UA and the anonymous tip to law enforcement were sufficient to establish reasonable suspicion of a parole violation, which was all that was required to search Haffner s house. 42 Kan. App. 2d at 213-14.
In each of these cases upholding a search based on reasonable suspicion, the court placed great emphasis on the subject’s knowledge of the conditions of his parole or probation and the fact that the subject had signed a written acknowledgement of the conditions of his release. Here, it is undisputed that Chapman was not informed of the new conditions of his parole imposed by K.S.A. 2012 Supp. 22-3717(k)(3) until police officers were at his house waiting to search. While Chapman was told by Evans over the telephone of the new conditions of his parole, he did not agree in writing to be subject to a search by law enforcement officers based on reasonable suspicion until the next day.
K.S.A. 2012 Supp. 22-3717(k)(3) provides that a parolee “shall agree in writing” to be subject to search or seizure by law enforcement officers based on reasonable suspicion. Based on the plain and unambiguous language of the statute, we find that a parolee’s written agreement is, in fact, a condition for a law enforcement officer’s search of a parolee’s home based on reasonable suspicion. If a parolee’s written agreement is not required before law enforcement may conduct a search of a parolee pursuant to K.S.A. 2012 Supp. 22-3717(k)(3), this language would be rendered meaningless.
The State argues that under Chapman’s interpretation of K.S.A. 2012 Supp. 22-3717(k)(3), “any parolee could avoid application of the statute by failing to sign the paperwork.” But this argument overlooks the obvious fact that if a prison inmate refuses to sign the written conditions of his or her parole, the inmate will not be released on parole in the first place. In this case, Evans acknowledged that he had an opportunity to require Chapman to sign a new parole agreement prior to the search of Chapman’s house on August 1, 2012, but he simply did not get around to completing the task.
For all tírese reasons, we conclude that the police did not comply with the requirements of K.S.A. 2012 Supp. 22-3717(k)(3) prior to the search of Chapman’s house. Thus, the district court erred by denying Chapman’s motion to suppress based solely on its finding that the search was valid under K.S.A. 2012 Supp. 22-3717(l<)(3).
Was Chapman’s grant of consent to search validP
The State contends that it does not matter whether the police complied with the requirements of K.S.A. 2012 Supp. 22-3717(h)(3) because Chapman ultimately consented to the search of his home after being accurately informed of the law. But Chapman argues that his consent to the search was coerced because his parole officer had told him he had no choice in the matter.
Any warx-antless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Consent is such an exception to the warrant requirement. State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993). “ Tor a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.’ [Citations omitted.]” State v. Ransom, 289 Kan. 373, 381, 212 P.3d 203 (2009).
The State has the burden of establishing the scope and volun-tariness of the consent to search. These questions present issues of fact which appellate courts review to determine if substantial competent evidence supports the district court’s findings. 289 Kan. at 380. If the parties do not dispute the material facts, the suppression issue is solely a question of law. State v. Spagnola, 295 Kan. 1098, 1104, 289 P.3d 68 (2012).
Here, the parties agree on the facts leading up to Chapman’s grant of consent. When the officers arrived at Chapman’s house, they knocked and Chapman answered the door. Bieberle identified himself and told Chapman he was there to investigate financial crimes. Bieberle asked if the officers could come in and search the residence, but Chapman refused. Bieberle was very persistent and continued trying to convince Chapman to consent to a search, but Chapman declined. Chapman told Bieberle that he was not coming in without a search warrant and went back inside his house. By all accounts, it was not until after Chapman received Evans’ phone call that he allowed the officers to search. After speaking with Evans, Chapman opened the front door, walked out, and “unhappily” said something to the effect of, “Come on in. I guess, I’m going to let you search.” Bieberle estimated that 45 minutes passed between his arrival and the point at which he actually entered Chapman’s house.
In City of Kingman v. Lubbers, 31 Kan. App. 2d 426, 428-29, 65 P.3d 1075, rev. denied 276 Kan. 967 (2003), this court ruled that a driver’s consent to a preliminary breath test was not rendered invalid when the officer truthfully and accurately informed the driver of the legal consequences of refusing to consent. Here, the State argues that Chapman consented to the search of his home “after being accurately informed of the law.” But as we discussed in the prior section of this opinion, Chapman was not accurately informed of the law. Evans never explained to Chapman that K.S.A. 2012 Supp. 22-3717(k)(3) required Chapman to agree in writing to a search by law enforcement officers based on reasonable suspicion. As a result, Chapman’s consent was based on Evans’ erroneous representation of the law and was not knowingly given.
Based upon the undisputed facts, the State has failed to meet its burden that Chapman’s consent to the search was unequivocal, specific, and freely given without duress or coercion, express or implied. See Ransom, 289 Kan. at 380-81. Rather, it is obvious that Chapman only reluctantly agreed to the search of his house after being informed by Evans that he had no choice in the matter.
Chapman also argues that the officers did not have reasonable suspicion to conduct a search. On this point we disagree with Chapman. Based on the totality of the circumstances and the information that had been provided to law enforcement that evidence of identity theft could be found in Chapman’s house, the police had reasonable suspicion to search the residence. However, for the reasons we have discussed, the requirements of K.S.A. 2012 Supp. 22-3717(k)(3) were not satisfied in this case because Chapman had not been required or requested to agree in writing to the new conditions of his parole prior to the search. Moreover, Chapman s verbal consent to the search of his home was not freely and voluntarily given under the circumstances. For these reasons, we conclude the district court erred in denying Chapman’s motion to suppress the evidence seized during the search of his house. We reverse Chapman’s convictions and remand with directions to grant his motion to suppress. Based on our resolution of this issue, we do not need to reach tire other issues Chapman has raised on appeal.
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Standridge, J.:
Marilyn G. Cross sought to exercise her right to an elective share of die estate of her deceased husband Charles V. Cross pursuant to K.S.A. 59-6a202 and K.S.A. 59-6a212. Although conceding she signed a written consent in 1992 to take under Charles’ will in lieu of exercising her statutory right to an elective share, Marilyn argues her written consent is no longer enforceable given the Kansas Legislature subsequently modified the manner in which the spousal elective share is calculated. Two of Charles’ sons, as coexecutors of his estate (the Coexecutors), challenged Marilyn’s right to an elective share, arguing the consent Marilyn signed in 1992 remains enforceable. The district court agreed with the Coexecutors, holding that Marilyn’s 1992 consent to Charles’ will constituted a waiver of the subsequently modified elective share rights under K.S.A. 59-6a213.
Facts
Charles and Marilyn were married on February 4, 1983, and were married for 26 years at the time of Charles’ death. Charles had three children from a prior marriage: Matthew Cross, Rickert L. Cross, and C. Barry Cross. Marilyn had four children from a prior marriage.
During their marriage, Marilyn maintained her own separate checking account and her own separate investment account. Charles maintained a separate money market account that he used for farm operations.
Charles signed his Last Will and Testament on July 20, 1992. The Last Will and Testament provided that Charles willed, devised, and bequeathed to Marilyn the residence they were living in at the time of his death; all of the household goods, furniture, jewelry, and personal effects; and any automobile owned at the time of his death. The residue of his estate was left to his three sons.
On July 20, 1992, Charles also executed a Revocable Trust Indenture as grantor and trustee. Charles and Marilyn were named as cotrustees of the Charles V. Cross Trust. Marilyn signed the Revocable Trust Indenture as cotrustee on September 4,1992. Pursuant to the Revocable Trust Indenture, the cotrustees were to invest and reinvest the property and pay the net income to the grantor (Charles) during his lifetime. Upon the grantors death, the surviving cotrustee (Marilyn) was required to pay all of the net income to Marilyn at least quarterly during her natural lifetime. Upon the death of Marilyn, her estate would be entitled to all of the accrued income not paid prior to her death. The Trust also would be required to distribute $100,000 from the corpus of the Trust to each of Marilyn’s children. The remainder of the trust estate was to be divided equally among Charles’ children. As set forth in the Revocable Trust Indenture, Charles signed, transferred, and delivered to the cotrustees certain property as set forth in Exhibit A to the Trust, which identified numerous assets.
On September 4, 1992, Marilyn signed a Consent of Wife to Charles’ Last Will and Testament. Marilyn does not dispute that she signed the consent having sound mind and memory; acting under her own free will and accord; and being under no undue influence, duress, or restraint. Marilyn also does not dispute that when she signed the consent she understood she would receive (1) the income from the Trust established by Charles on which she was named the cotrustee and lifetime beneficiary, (2) life insurance benefits, (3) beneficiary proceeds from an IRA account, and (4) the property identified in the will itself. Finally, Marilyn does not dispute that by signing the consent she understood Charles’ sons would inherit his business and his farm. Marilyn later drafted a separate will for herself, to which Charles agreed and consented.
Charles died testate in El Dorado, Kansas, on September 8, 2009, leaving Marilyn as the surviving spouse. On September 25, 2009, Barry and Matthew filed a Petition for Probate of the Will and Appointing Executor Under the Kansas Simplified Estate Act. Contrary to the provisions set forth in K.S.A. 59-2233, neither the Coexecutors nor their counsel provided Marilyn with the required Notice to Surviving Spouse of Elective Share Right during the probate proceedings settling Charles’ estate. On April 22,2010, a Journal Entry for Final Settlement was entered. Marilyn received the household and personal property items as stated in Charles’ will.
On May 3, 2012, Marilyn filed a Petition to Vacate Journal Entry of Final Settlement and to Allow Petitioner to File Petition for Elective Share of Surviving Spouse. The court entered a journal entry finding that the Journal Entry of Final Settlement dated April 22, 2010, was void and therefore set aside. Marilyn was permitted to file a Petition for Elective Share of Surviving Spouse, which she later filed on February 14, 2014.
In her Petition for Elective Share of Surviving Spouse, Marilyn argued she had “not waived her right to take tire elective share, homestead and family allowance or any other renounced benefits that would otherwise pass to a surviving spouse by agreement or otherwise.” Relying on this argument, Marilyn claimed she was entitled to her statutory elective share percentage of Charles’ augmented estate, the homestead, and a spousal allowance. In response to Marilyn’s petition, the Coexecutors filed a Petition for Determination of Validity and Effect of Consent of Wife.
On December 16, 2014, the court issued its ruling on the Coex-ecutors’ Petition for Determination of Validity and Effect of Consent of Wife. Applying K.S.A. 59-6a213, the court found Marilyn expressly and voluntarily agreed to take under Charles’ will and waived her right to take the statutory spousal elective share, her homestead or homestead allowance, and her spousal allowance. As a matter of law, the court then held that Marilyn’s 1992 consent to take under Charles’ will in lieu of any statutory spousal elective share rights to which she was entitled remained an enforceable waiver at the time Charles died, notwithstanding the fact that Marilyn executed it before passage of a new law providing spousal elective share rights that did not exist under prior law.
Jurisdiction
Before reaching the merits of Marilyn’s arguments, we first address a jurisdictional issue raised by the Coexecutors. In a response to Marilyn’s docketing statement filed with this court, the Coexecu-tors questioned whether Marilyn was appealing from a final order as required. Although the appeal was retained, this court asked the parties to brief the jurisdictional issue.
The parties agree that this issue was recently resolved by the Kansas Supreme Court in In re Estate of Butler, 301 Kan. 385, 343 P.3d 85 (2015), where the court considered whether a probate order allocating the decedents severance benefits was a final ap-pealable order. In making its ruling, the court noted that the term “final decision” is an order which definitely terminates a right or liability involved in the action or which grants or refuses a remedy as a terminal act in the case. 301 Kan. at 395. The court concluded that the allocation order determining the decedent’s father’s interest in a severance package and the subsequent enforcement of that order left no further action to dispose of the issues arising out of the severance package and was, therefore, a final appealable order. 301 Kan. at 395.
The order at issue in the present case—holding that Marilyn was not entitled to an elective, share of Charles.’ estate—definitely terminates a right involved in the action because it is a final determination of Marilyn’s interest in Charles’ estate and, thus, constitutes a final appealable order. See 301 Kan. at 395. As a result, this court has jurisdiction over the issues raised in Marilyn’s appeal.
' Analysis
Marilyn presents two points of error on appeal. First, she asserts the district court erred in concluding that her 1992 consent to take under Charles’ will and waive the statutory spousal election remains enforceable, notwithstanding the 1995 amendments to the law providing rights to an augmented spousal elective share that did not exist under prior law. Second, Marilyn asserts the district court erred in failing to address her alternative argument that any waiver of her elective share rights was limited by K.S.A. 59-6a213(d).
Resolution of both issues raised by Marilyn requires interpretation of provisions in the Kansas Probate Code (KPC) regarding the elective share of a surviving spouse, K.S.A. 59-6a201 et seq. Interpretation of a statute is a question of law. An appellate court is not bound by the district courts interpretation of a statute and is obligated to interpret a statute de novo. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
Consent and toaiver
Prior to 1995, a surviving spouses elective share rights were governed by K.S.A. 1992 Supp. 59-603. This statute authorized a surviving spouse who had not consented to take under the decedent’s will to either take under the will or exercise the statutoiy right to an elective share under the laws of intestate succession. If, however, tire surviving spouse properly consented to the will in lieu of the right to a spousal elective share under Kansas law, the survivor was bound by such consent to take under the testator’s will. K.S.A. 1992 Supp. 59-603(a).
In 1994, the Kansas Legislature amended the KPC to repeal K.S.A. 59-603 and incorporate the elective share provisions set forth in the Uniform Probate Code § 2-201 etseq. (UPC), 8 U.L.A. 101 (1998). See In re Estate of Antonopoulos, 268 Kan. 178, 181, 993 P.2d 637 (1999). After January 1, 1995, a surviving spouse has a statutory right to take an elective share percentage of the decedent’s “augmented estate.” K.S.A. 59-6a202(a)(l). The augmented estate is the sum of the values of “all property that constitute^] the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others.” K.S.A. 59-6a203; see also K.S.A. 59-6a208 (exclusions from augmented estate); K.S.A. 59-6a209 (sequential order of amounts applied to satisfy elective share). A surviving spouse may be eligible to receive a “supplemental elective share amount” if certain conditions are met. K.S.A. 59-6a202(b).
Notably, the statutoiy amendments expressly left intact the right of a surviving spouse to waive any or all of the elective share rights to which the surviving spouse would be statutorily entitled.' K.S.A. 59-6a213(a). The right of a surviving spouse to homestead and statutory allowances for support also remain unchanged, but the amendments added an option to receive a homestead allowance in lieu of the actual homestead itself. See K.S.A. 59-401 (providing for homestead); K.S.A. 59-403 (providing statutoiy allowances for support of spouse and minor children—the family allowance); K.S.A. 59-6a215 (providing for right to elect homestead allowance in lieu of homestead).
Relying on the amendments described above, Marilyn argues the consent and waiver she executed in 1992 became unenforceable on January 1, 1995, the date the amendments became effective, because she could not have knowingly waived spousal rights that did not yet exist. We disagree.
A valid waiver by a surviving spouse of a right of election against a will, to tire homestead, homestead allowance, exempt property, and family allowance, or all of them, must meet the following requirements: (1) It must be in the form of a written contract, written agreement, or written consent to an instrument; (2) it must be signed by the party waiving the right; (3) it must have been executed voluntarily; (4) the waiving party must have been provided a fair and reasonable .disclosure of the decedents property; and (5) the waiving party must have adequate knowledge of the decedents property. K.S.A. 59-6a213(a), (b).
The legal sufficiency of a spousal consent is to be determined “as of the time the document evidencing consent was made.” Younger v. Estate of Younger, 198 Kan. 547, 551, 426 P.2d 67 (1967). In this case, Marilyn concedes the consent to take under Charles’ will and to waive the statutory right to an elective share was valid, enforceable, and satisfied the requirements set forth in K.S.A. 59-6a213 when she signed it in 1992. Rather, she argues the consent and waiver she signed in 1992 is no longer valid or enforceable given the Kansas Legislatures 1995 amendments changing the manner in which the spousal elective share is calculated.
Simply put, there is no language in K.S.A. 59-6a213 to support Marilyns argument that application of the statute is limited to consent documents signed after the KPC amendments went into effect in 1995. In fact, such a distinction would have no support in the law because there is no substantive difference between the pre-1995 and post-1995 versions of the consent statute. When Marilyn consented in 1992 to take under Charles’ will and waive her statutory right of election, the statute governing a surviving spouse’s elective share provided, in relevant part:
“If the survivor consents to the will and all other dispositions subject to a surviving spouse’s right of election or fails to make an election, as provided by law, the survivor shall take under the testator’s will and all other dispositions subject to a surviving spouse’s right of election. The will or other dispositions shall be effective except as to the elected share.” K.S.A. 1992 Supp. 59-603(a).
The current statute governing a surviving spouse’s elective share provides, in relevant part:
“(a) The right of election of a surviving spouse and the rights of the surviving spouse to the homestead, the homestead allowance or the family allowance, or all of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, consent to any instrument, or waiver signed by the surviving spouse.” K.S.A. 59-6a213(a).
Thus, although the KPC was amended in 1995 to adopt the manner in which the UPC calculated spousal elective shares, the substance of die law on the issue of consent to take under a spouse’s will and waive the spousal elective share provided by statute has not changed at all. Both before and after the 1995 amendment, a surviving spouse may consent in writing to take under a spouse’s will and waive, wholly or partially, his or her right to statutory and other elective share benefits that would otherwise pass to the surviving spouse by intestate succession. See K.S.A. 1992 Supp. 59-603; K.S.A. 59-6a213(a).
While we believe the meaning of K.S.A. 59-6a213(a) is clear, one additional rule of statutory interpretation resolves any ambiguity that may arise when that statute is read in its entirety. The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Although K.S.A. 59-6a213(a) does not limit its application to those documents signed after the statute took effect in 1995, a different subsection of the same statute specifically references documents executed on or after July 1, 2002, with respect to the waiver of rights to homestead, homestead allowance, and family allowance. See K.S.A. 59-6a213(d). The legislature did not include a similar prospective date limitation in K.S.A. 59-6a213(a) relating to instruments or documents which waive elective share rights. We cannot ignore the fact that the legislature included a prospective date limitation in subsection (d) of the statute but not in subsection (a).
In addition to a lack of statutory support for her argument, Marilyn’s position is further impaired by the actual language within the 1992 consent and waiver Marilyn executed. The Consent of Wife signed by Marilyn states:
“I, Marilyn G. Cross, wife of Charles V. Cross, having had explained to me the provisions of the Last Will and Testament of Charles V Cross, and all my rights thereunder, and having had explained to me all my rights under the laws of the State of Kansas, including homestead rights and statutory allowances, and fully understanding my rights under said will and under the Statutes of the State of Kansas, do hereby give my voluntaiy consent to the execution of this will and do hereby voluntary elect and bind myself to accept the terms and provisions of said Last Will and Testament in lieu of all my rights under the laws of the State of Kansas, including homestead rights and statutory allowances.”
We find die language used by Marilyn here to be broad enough to waive spousal rights in the additional types of property interests subject to the amended spousal elective share formula that became effective in 1995. And with regard to Marilyn’s assertion that she could not have knowingly waived spousal rights that did not yet exist, we find the Supreme Court’s discussion in In re Estate of Ellis, 168 Kan. 11, 29, 210 P.2d 417 (1949), to be instructive:
“It may be conceded that in many of our decisions, stress is laid on the fact that the consenting spouse was not advised as to his or her rights under tire statutes pertaining to descents and distributions, but in those cases that knowledge, or lack of it, went to tire question whether the consent there involved was freely and understandingly given; but it follows that if a review of the circumstances shows that the consenting spouse was fully aware of the estate of tire other, and of the disposition made in the will, knew for some period of time that the particular disposition was to be made, made no effort to inform herself, made no protest to documents of testamentary disposal and her consent thereto being prepared and without malting any effort to ascertain her rights, executed the consent, it must be held either that she acted intelligently or that she was willing to act unintel-ligently.”
Conversely, we find the cases cited by Marilyn in support of her position to be distinguishable. In Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 64 P.3d 395 (2003), the decedent executed a will in 1978 that created a testamentary trust oyer which the trustee had discretion to make.distributions of the principal to the decedents wife for her lifetime. The decedent’s wife consented to the will on the same day. After the decedent passed away in 1995, the trustee paid the decedents wife $1,000 per month from the income and principal of the trust. The decedent’s wife later applied for Medicaid benefits. The Department of Social and Rehabilitation Services (SRS) denied the application based on its determination that the full value of the trust was an available resource from which the decedent’s wife could pay her bills and found that she was therefore ineligible for Medicaid. The decedent’s wife appealed this decision. Following an administrative hearing, the presiding officer held that the income of the trust should be attributed to the decedent’s wife for eligibility determination purposes, that the trust was a discretionary trust, and that “to the extent Mrs. Miller waived her rights to the spousal elective share of her husband’s estate, she created a trust which woüld be an available resource when determining her eligibility.” 275 Kan. at 352. On review, the district court held that because the discretionary trust was funded solely with the decedent’s property, the principal of thé trust was not available when considering the Medicaid eligibility of the decedent’s wife.
On appeal to the Kansas Supreme Court, SRS argued that the decedent’s wife was ineligible to receive Medicaid benefits because “her consent to the terms of her husband’s will, in lieu of her taking her statutory elective share as a spouse, essentially placed her spousal share of the marital estate in the discretionary trust, which malees it an asset currently available to her for determining Medicaid eligibility.” 275 Kan. at 356. The Supreme Court agreed with SRS. 275 Kan. at 356-63. Marilyn argues that Miller is controlling because the Supreme Court did not construe the wife’s 1978 consent to the decedent’s will as a waiver of her 1995 spousal elective share rights, instead holding that the discretionary trust was funded by her elective share of the marital estate, notwithstanding her previous consent to the will. But Marilyn’s reliance on Miller is misplaced because it contains no relevant analysis of the issue currently before us. Neither party in Miller raised the issue of whether a consent to a will constituted a waiver of later-enacted elective share statutes pursuant to K.S.A. 59-6a213(a), nor was this an issue directly addressed by the Supreme Court.
In In re Estate of Searl, 72 Hawaii 222, 811 P.2d 828 (1991), the decedent and her husband executed a general warranty deed in 1968 which conveyed all of their rights, title, and interest in certain real estate in Lanilcai to the decedent. The decedent executed a will in 1970 and a codicil to the will in 1983 that named her daughter the sole beneficiary of her net estate, which included the Lani-kai real estate. The decedent did not name the husband in her will. In 1976, Hawaii adopted the UPC, which included provisions for a surviving spouse’s right to take an elective one-third share of the decedent spouse’s net estate. Following the decedent’s death, the husband filed for an elective share of the decedent’s estate. On appeal to the Hawaii Supreme Court, the decedent’s daughter argued that the general warranty deed executed by the decedent’s husband conveying all his rights in the Lanilcai property to the decedent acted as a waiver of any right to an elective share under the UPC. The Supreme Court disagreed that the husband’s conveyance of the property in fee simple constituted a waiver of his right to an elective share, reasoning that at the time the husband had conveyed the property, the UPC had not been enacted and he had no knowledge of his right to take an elective share of the decedents property upon her death. As a result, the court held that the general warranty deed could not act as a waiver of the husbands statutory right to an elective share. 72 Hawaii at 226-27.
The case here is clearly distinguishable because Estate of Searl dealt with a general warranty deed, not a spousal consent to a will. Notably, the Hawaii Supreme Court held that under the warranty deed the husband had merely conveyed his rights in certain property but had not waived his elective share rights under the UPC. 72 Hawaii at 225-27. Indeed, the court specifically noted: “We do not determine whether the general warranty deed would constitute a waiver in accordance with HRS § 560:2-204 [(1985); recodified in 1996 as § 560:2-213].” 72 Hawaii at 227 n.1. Hawaii Rev. Stat. § 560:2-213(a) (2006) is Hawaii’s elective share waiver provision, similar to K.S.A. 59-6a213(a). In addition, spousal elective share rights existed in Kansas in 1992 when Marilyn signed the consent; the 1995 amendments merely changed the method of calculating the amount of the surviving spouses elective share. Compare K.S.A. 1992 Supp. 59-603 with K.S.A. 59-6a202. Unlike the situation in Estate of Searl, the elective share rights were not enacted for the first time after Marilyn signed the consent.
At the time Marilyn signed the consent to Charles’ will, a surviving spouse was entitled to elect to take one-half of the decedent’s estate. See K.S.A. 1992 Supp. 59-602. A surviving spouse also had the right to claim a homestead and a family allowance. See K.S.A. 59-401; K.S.A. 59-403. The plain language of Marilyn’s consent to Charles’ will demonstrates that she agreed to accept the provisions made for her under the will in lieu of “all” other rights under Kansas law. Thus, by consenting to Charles’ will, Marilyn gave up her right to receive her legal share in Charles’ estate. The fact that her legal share would have later changed due to legislative amendment is irrelevant. The district court properly determined that Marilyn’s 1992 consent to Charles’ will constituted a waiver of the elective share statutes amended by the legislature in 1995.
KS.A. 59-6a213(d)
In her second point of error, Marilyn argues that even if the 1992 consent operates as a waiver of her elective share rights, the effect of such a waiver is limited pursuant to the language in K.S.A. 59-6a213(d). Marilyn contends the district court erred in failing to consider this alternative argument below. In response, the Coexec-utors argue that we should not consider this issue because Marilyn did not object to the district court’s failure to address this argument. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013) (party must object to inadequate findings of fact and conclusions of law to preserve issue for appeal). But Marilyn is not disputing the adequacy of the district courts findings or conclusions; rather, she is challenging the district court s ruling that her consent constituted a waiver of her elective share rights by presenting an alternative argument that was also raised below. As a result, we will reach the merits of Marilyn s argument.
K.S.A. 59-6a213(d) was amended by the legislature in 2002. The legislature removed the following stricken language and added the language in italics:
“(d) Unless it provides to the contrary, a waiver of ‘all rights,’ or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective shareUromestead-and family allowance-by-eaeh spouse-in the property of the-orirer-and-areminciation by each of all benefits that would otherwise pass to such spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement. For documents executed on and after July 1, 2002, to waive the homestead, the homestead allowance or the family allowance, or all of them, the language of the document must clearly provide that the homestead, the homestead allowance or the family allowance, or all of them, were understandably and knowledgeably waived by each spouse, if applicable.” L. 2002, ch. 135, sec. 3.
Marilyn suggests that the legislatures intent in revising K.S.A. 59-6a213(d) was to codify the pre-1995 law by providing that a waiver of all rights in a consent is only a waiver of benefits that would otherwise pass by intestate succession or by virtue of any previously executed will. As a result, she alleges that a waiver of all rights only constitutes a waiver of what the consenting spouse had already agreed to by signing the consent, not any additional rights under the Kansas elective share statutes. To that end, she contends that her 1992 consent could only operate to waive what she would have received under Charles’ will.
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). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted. 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 v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90 (2014). K.S.A. 59-6a213(d) provides that a waiver of “ ‘all rights’ ” constitutes a waiver “of all rights of elective share benefits that would otherwise pass to such spouse from the other by intestate succession or by virtue of any will executed before the waiver . . . .” This portion of the statute remained unchanged following the 2002 amendment. Rather than limiting the elective share benefits that may be waived, it appears that the legislature’s purpose in amending the statute was to add the requirement that any document containing a spouse’s waiver to the homestead, the homestead allowance, or the family allowance must “clearly provide” that these rights were “understandably and knowledgably” waived. K.S.A. 59-6a213(d).
In any event, Marilyn’s argument would require this court to reach an absurd result. Charles’ will devised to Marilyn the couple’s residence, car, household goods, furnishings, jewelry, and personal effects. By signing the consent, Marilyn expressly elected to accept the terms and provisions of Charles’ will. Marilyn’s position would have this court find that by signing the consent, she was instead waiving her rights to these items. Such a result is unreasonable. See Fisher v. DeCarvalho, 298 Kan. 482, 495, 314 P.3d 214 (2013) (courts must construe statutes to avoid unreasonable or absurd results and presume legislature does not intend to enact meaningless legislation). K.S.A. 59-6a213(d) does not in anyway limit the elective share benefits that Marilyn waived by signing the consent to Charles’ will.
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Granted.
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The opinion of the court was delivered by
Rosen, J.:
The State appeals the Court of Appeals’ decision in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), vacating Jeff Dickey’s 16-month prison sentence for theft (a severity level 9 nonperson felony) and remanding for resentencing. The Court of Appeals reached this decision after concluding that the district court violated Dickey’s constitutional rights as described in Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by classifying Dickey’s prior 1992 in-state juvenile adjudication for burglaiy as a person felony—resulting in Dickey having a criminal history score of A and placing him in the A-9 grid box of the Kansas Sentencing Guidelines.
The State argues that the Court of Appeals erred in reaching the merits of Dickey’s Descamps/Apprendi argument (raised for the first time on appeal) because Dickey failed to challenge his criminal history score at sentencing and, in fact, stipulated to the accuracy of his criminal history shown in the presentence investigation (PSI) report prepared prior to his sentencing. Alternatively, the State argues that because Descamps involved the classification of a prior crime for purposes of imposing an enhanced sentence under tire federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (2012), Descamps is simply inapplicable to the issue of how Dickey’s prior juvenile adjudication should be classified (i.e., person or nonperson) for purposes of determining his criminal history score and, in turn, sentencing him under the guidelines. Thus, according to the State, Descamps does not provide a basis for vacating Dickey’s sentence.
In his cross-petition for review, Dickey argues that the Court of Appeals erred in concluding that the legal reasoning of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (holding that all out-of-state crimes occurring prior to July 1,1993—the date the Kansas Sentencing Guidelines Act (KSGA) was implemented—must be classified as nonperson crimes) was inapplicable to determining whether his 1992 in-state juvenile adjudication for burglary was properly classified as a person felony.
Though we rely on a different legal basis than that cited by the Court of Appeals for reaching the merits of Dickey s Descamps/ Apprendi argument, we agree with the panel’s conclusion that Dickey’s legal challenge to the classification of his prior burglary adjudication can be raised for the first time on appeal. Furthermore, we also agree with the panel that because the Kansas Sentencing Guidelines Act (KSGA) provides a specific method for classifying prior burglaries for criminal history purposes, see K.S.A. 2014 Supp. 21-6811(d), neither Murdock’s legal reasoning nor holding has any applicability to the classification issue raised in this case.
Finally, in order to classify a prior burglary conviction or adjudication as a person offense under K.S.A. 2014 Supp. 21-6811(d), a sentencing court must find that the prior burglary involved a “dwelling,” i.e., “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.” K.S.A. 2014 Supp. 21-5111(k). But the burglary statute in effect when Dickey committed his prior burglary did not require evidence showing that the structure burglarized was a dwelling. See K.S.A. 1991 Supp. 21-3715. Thus, determining whether Dickey’s prior burglary involved a dwelling would necessarily involve judicial factfinding that goes beyond merely finding the existence of a prior conviction or the statutory elements constituting that prior conviction. Accordingly, we agree with the Court of Appeals that classifying Dickey’s prior burglary adjudication as a person felony violates his constitutional rights as described under Descamps and Apprendi. Consequently, his sentence must be vacated and his case remanded to the district court for resentencing with instructions that his prior burglary adjudication be classified as a nonperson felony.,
Facts
On April 9, 2013, Dickey pled guilty to felony theft. A hearing was conducted on May 16, 2013, to consider sentencing on the theft conviction and whether to revoke Dickey’s probation in four other cases.
A PSI report was prepared prior to the hearing showing that Dickey had 55 prior convictions, including 3 person felonies, 12 nonperson felonies, and 40 nonperson misdemeanors. The individual who prepared the PSI report designated Dickey s criminal history score an “A” based on the finding that Dickey had three prior adult convictions or juvenile adjudications for person felonies. See K.S.A. 2014 Supp. 21-6809 (offender falls into criminal history category A when offender s criminal history includes three or more adult convictions or juvenile adjudications for person felonies, in any combination). One of the three offenses scored as a person felony was a 1992 juvenile adjudication for burglary, which occurred prior to the enactment of the KSGA and the classification of crimes in Kansas as either person or nonperson.
Under K.S.A. 2014 Supp. 21-6811(d), in order to classify the 1992 burglaiy adjudication as a person felony, the person who prepared the PSI would have had to conclude that the 1992 burglary involved a “dwelling,” which is defined as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home, or residence.” K.S.A. 2014 Supp. 21-5111(k). At the time of Dickey’s 1992 adjudication, burglaiy was defined as
“knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
As can be discerned from the statutory language, K.S.A. 1991 Supp. 21-3715 did not distinguish between a burglaiy of a dwelling versus a burglaiy of a nondwelling. Though the statute proscribed burglary of a “[bjuilding, manufactured home, mobile home, tent or other structure,” it did not require a showing that the structure burglarized be a “dwelling,” i.e., was “used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k).
Notably, if a defendant challenges the person/nonperson classification of a prior burglary for criminal history purposes under K.S.A. 2014 Supp. 21-6814(c), then the State has the burden to prove by a preponderance of the evidence the facts required for the classification (i.e., whether the prior burglary involved a dwelling or nondwelling). See K.S.A. 2014 Supp. 21-6811(d).
A certificate of service sheet attached to the PSI report shows that the report was served upon defense counsel via courthouse mail and U.S. mail on May 2, 2013. Dickey never filed any notice of error pursuant to K.S.A. 2014 Supp. 21-6814(c) (“Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error.”)- At the sentencing hearing on May 16, Dickey responded affirmatively when die court asked whether he had reviewed his criminal history and responded negatively when the court subsequently asked whether he had an objection to any of the convictions listed. Dickey testified in support of his motion for a downward departure sentence. During this testimony, defense counsel asked: “And you understand that for starters your criminal history A is that correct do you agree with that?” Dickey responded: “Yes, ma’am.”
After hearing the testimony and the arguments of counsel, the district court denied Dickey s motion for downward departure and sentenced Dickey to 16 months’ imprisonment (the standard sentence in the A-9 grid box) and ordered the sentence to run consecutive to his sentences in the four other criminal cases in which his probation was revoked. Dickey filed a timely notice of appeal.
Before the Court of Appeals, Dickey argued that the district court’s classification of his 1992 burglary adjudication—resulting in him having a criminal history score of A—violated his rights under the Sixth Amendment to the United States Constitution as described in Descamps (filed after Dickey’s sentencing) and Ap-prendi. Dickey conceded that he was raising this argument for the first time on appeal and that he failed to raise an objection to his reported criminal history score. But he contended that his argu ment implicated Apprendi and that based on State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), issues implicating Apprendi could be raised for the first time on appeal because such claims (1) involved only questions of laws arising on undisputed facts and are determinative of the case; and (2) consideration of such issues are necessary to prevent the denial of fundamental rights. Dickey also maintained that his argument could be raised for the first time on appeal pursuant to K.S.A. 2014 Supp. 21-6820(e)(3), which states: “In any appeal, the appellate court may review a claim that . . . the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
The State argued Descamps had no application to this case because Descamps involved judicial factfinding at a federal sentencing hearing to determine whether a prior burglary conviction qualified as a predicate offense under the ACCA for purposes of imposing an enhanced sentence. Thus, according to the State, the case involved application of a federal sentencing statute and not application of constitutional law. Instead of Descamps, the State argued that the outcome of this case was controlled by prior Court of Appeals’ decisions indicating that a pre-KSGA burglary conviction could be properly classified as a person felony if the underlying facts of the prior conviction showed that a dwelling was burglarized. See, e.g., State v. May, 39 Kan. App. 2d 990, 186 P.3d 847 rev. denied 287 Kan. 768 (2008). Because Dickey failed to object to the classification of his 1992 burglary adjudication as a person felony, the State argued that the invited-error doctrine barred Dickey from challenging that classification on appeal. By not objecting at sentencing, the State contended that' Dickey essentially stipulated to the fact that the 1992 burglary adjudication involved a dwelling, making it a person felony. Consequently, Dickey was bound by his stipulation on appeal.
In further support of his argument that his 1992 burglary adjudication should be classified as a nonperson felony, Dickey filed a letter with the Court of Appeals pursuant to Supreme Court Rule 6.09(b) (2014 Kan. Ct. R. Annot. 52) advising it of this court’s recent decision in Murdock (issued after Dickey s brief was filed), holding that all out-of-state crimes occurring prior to the enactment of the KSGA must be classified as nonperson offenses for criminal history purposes. Obviously, by citing to Murdock, Dickey believed that Murdock’s legal reasoning applied to pre-KSGA instate crimes.
In a published opinion, the Court of Appeals panel agreed with Dickey that his Descamps argument could be raised for the first time on appeal because it only involved a question of law on undisputed facts and was determinative of the case and because consideration of the argument was necessary to serve the ends of justice and to prevent the denial of a fundamental right. Dickey, 50 Kan. App. 2d at 474-75. With regard to the State’s argument that the invited-error doctrine barred Dickey from raising his Descamps argument on appeal, the panel concluded that it was “completely irrational” to view Dickey’s fleeting and perfunctory responses at sentencing to routine and prefatory questions as
“affirmative invitations by Dickey to count his 1992 juvenile adjudication for burglary as a person felony. To construe Dickey to have invited the court to do so for purposes of precluding him from pursuing his claim for relief not only counters the underlying purpose of the doctrine but also unnecessarily thwarts the ends of justice.” 50 Kan. App. 2d at 492.
Accordingly, the panel addressed the merits of Dickey’s Des-camps argument. Before doing so, however, the panel analyzed this court’s decision in Murdock. The panel reasoned that because Murdock addressed the issue of how to classify pre-KSGA out-of-state crimes for sentencing purposes—a situation for which the legislature had provided no explicit statutory guidance—Murdock’s reasoning for classifying such crimes as nonperson offenses was inapplicable to the situation here: how to.classify a pre-KSGA instate burglary conviction or adjudication. The court noted that K.S.A. 2013 Supp. 21-6811(d) specifically applied to the classification of in-state burglary convictions occurring before the enactment of tire KSGA. Accordingly, the panel concluded that “neitiier the analysis nor the holding in Murdock apply to the issue presented in this case.” Dickey, 50 Kan. App. 2d at 480.
With regard to whether classifying Dickey s 1992 burglary adjudication as a person felony violated his constitutional rights as described in Descamps, tire panel noted that the burglary statute forming tire basis of the 1992 adjudication was comprised of multiple, alternative versions of the crime, but none included an element relating to whether the structure burglarized was a dwelling. See K.S.A. 1991 Supp. 21-3715. Consequently, the panel concluded that classifying Dickey s 1992 burglary adjudication as a person felony would have necessarily required the district court to look beyond the elements of the 1991 burglary statute in search of record evidence to determine whether the burglary involved a dwelling—an undertaking tire panel held was constitutionally proscribed by Descamps and Apprendi. Accordingly, the panel concluded that as a matter of law, Dickey s 1992 burglary adjudication should have been classified as a nonperson felony and, thus, vacated his sentence and remanded for resentencing. Dickey, 50 Kan. App. 2d at 486-90, 492.
Judge Pierron filed a concurring opinion, agreeing with the majority that Dickey s 1992 burglary adjudication rnurt be classified as a nonperson felony. But, unlike the majority, Judge Pierron believed that Murdock’s reasoning was applicable to Dickey s case and dictated that his 1992 adjudication be classified as a nonperson felony. Dickey, 50 Kan. App. 2d at 492.
The State filed a petition for review arguing that (1) Dickey waived appellate review of the classification of his 1992 burglary adjudication because he failed to challenge the classification at sentencing; and (2) Descamps is inapplicable to the sentencing issue presented here because Descamps involved application of a federal sentencing enhancement statute. Dickey filed a cross-petition for review arguing that Murdock applies to his case and provides an alternative basis for classifying his burglary adjudication as a nonperson felony. This court granted the State’s petition for review as well as Dickey s cross-petition for review.
Waiver
The State argues that the Court of Appeals erred in addressing the merits of Dickey’s challenge to the classification of his prior burglary adjudication because Dickey failed to raise an objection to tbe classification at sentencing and, in fact, stipulated to the accuracy of his criminal history score. Consequently, the State contends that Dickey is barred from challenging the classification on appeal based on the invited-error doctrine.
Though not relied on by either Dickey or the Court of Appeals as a means for raising his Descamps argument for the first time on appeal, K.S.A. 22-3504(1) specifically authorizes a court to “correct an illegal sentence at any time.” This language has generally been interpreted to mean that “an illegal sentence issue may be considered for the first time on appeal.” State v. Floyd, 296 Kan. 685, 690, 294 P.3d 318 (2013). See also State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013) (“This court may correct an illegal sentence sua sponte."); State v. Scherzer, 254 Kan. 926, 930, 869 P.2d 729 (1994) (Kansas courts have “specific statutory jurisdiction to correct an illegal sentence at any time.”). However, opinions from this court have been split as to whether a defendant who fails to object or stipulates to his or her criminal history score at sentencing has waived abater challenge to the criminal history score on appeal.
In State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003), the defendant sought to challenge for the first time on appeal the classification of a prior 1980 Virginia conviction as a person felony, which resulted in the defendant having a criminal history score of B. Notably, the defendant failed to provide written notice pursuant to K.S.A. 21-4715(c) (recodified at K.S.A. 2014 Supp. 21-6814[c]) of claimed errors within the proposed criminal history worksheet. Furthermore, defense counsel stipulated to the accuracy of the defendant’s criminal history score listed in an amended PSI. But the record on appeal indicated that the district court never personally addressed the defendant at sentencing regarding his criminal history, and there was nothing in die record to indicate that the defendant was afforded an opportunity to review the amended PSI prior to sentencing. Vandervort, 276 Kan. at 173-75.
In addressing whether the defendant was procedurally barred from challenging his criminal history score on appeal, the Vander-vort court quoted State v. McBride, 23 Kan. App. 2d 302, Syl. ¶ 3, 930 P.2d 618 (1996), stating “[t]he general rule regarding review of an illegal sentence is that ‘[a] defendant who invites error by stipulating to his or her criminal history cannot request a correction of sentence under K.S.A. 22-3504 after pronouncement of sentence.’ ” Vandervort, 276 Kan. at 175-76. Despite acknowledging McBride’s holding, the Vandervort court proceeded to review the facts of two Court of Appeals cases and noted that K.S.A. 21-4721(e)(3) (recodified at K.S.A. 2014 Supp. 21-6820[e][3]) establishes appellate jurisdiction to consider whether tire sentencing court erred in determining the appropriate classification of a prior conviction. The Vandervort court then concluded that under limited circumstances, an appellate court can address alleged criminal histoiy errors for the first time on appeal despite a stipulation or lack of an objection at sentencing. The court described those circumstances as being when there was no oral stipulation by the defendant in open court regarding the accuracy of the criminal history contained within the PSI report and that there was no opportunity for the defendant or defense counsel to review tire criminal history prior to the sentencing hearing. Finding that those circumstances were present in the case before it, the Vandervort court proceeded to address the merits of the defendant’s argument regarding the calculation of his criminal histoiy score. 276 Kan. at 176-77.
In McBride—the Court of Appeals decision cited by tire Van-dervort court—the defendant stipulated to his criminal history score at sentencing but subsequently argued on appeal that his prior juvenile adjudication for burglary should have been scored as a nonperson felony instead of as a person felony. The defendant claimed that his resulting sentence was an illegal sentence and, thus, could be corrected at any time pursuant to K.S.A. 22-3504. The Court of Appeals, citing State v. Thomas, 220 Kan. 104, 106, 551 P.2d 873 (1976), in support, rejected the defendant’s argument regarding tire applicability of K.S.A. 22-3504, stating: “[T]he law is well settled that one who, by his or her own acts, invites error cannot then complain or take advantage of it on appeal.” McBride, 23 Kan. App. 2d at 304. Because the defendant stipulated to his criminal history score at sentencing, the panel concluded that tire defendant had waived any argument on appeal regarding the inaccuracy of his criminal history score. 23 Kan. App. 2d at 304.
Notably, tire court in Thomas applied the invited-error doctrine to an evidentiary question—not a sentencing issue. The defendant in Thomas claimed that the district court erred in preventing him from presenting evidence at trial showing that the victim, in exchange for a large sum of money, offered to “drop the case” against the defendant. 220 Kan. at 105-06. But prior to this occurrence at trial, the defendant had prevented the State from questioning the victim as to whether the defendant was the one who had made the initial offer of money. In concluding that the district court had not erred in excluding die evidence, the Thomas court stated:
“The [defendant’s] successful exclusion of similar evidence is significant. It is settled law that one who by his acts invites error is in no position to complain or take advantage of it on appeal. [Citations omitted.] Thus, a party who has had evidence excluded is estopped to complain of the subsequent exclusion of similar evidence offered by him.” 220 Kan. at 106.
This court later relied on Vandervort in State v. Goeller, 276 Kan. 578, 584-85, 77 P.3d 1272 (2003). In Goeller, the defendant stipulated to a criminal history score of F at sentencing. On appeal, he argued that the district court erred by including a felony conviction in his criminal history that either was or could have been used to increase tire sentence for his current conviction of possession of marijuana. In declining to address the merits of the defendant’s argument, the Goeller court acknowledged that “[generally, under K.S.A. 21-4721(e), we have jurisdiction to consider whether the district court erred in determining the appropriate classification of [the defendant’s] prior convictions.” 276 Kan. at 585. But, relying on Vandervort (which relied on McBride, which, in turn, relied on Thomas—a case applying the invited-error doctrine to an evidentiary issue), the Goeller court reasoned that “[a] criminal defendant who stipulates to an incorrect criminal history score cannot later complain on appeal of an illegal sentence based on that score.” Goeller, 276 Kan. 578, Syl. ¶ 6.
More recent cases from this court have interpreted K.S.A. 22-3504 as allowing challenges to criminal ¡history scores and/or clas sifications of prior crimes to be raised for die first time on appeal despite a stipulation or lack of objection at sentencing. In State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011), the defendant had three municipal misdemeanor convictions that were aggregated under K.S.A. 21-4711(a) (recodified at K.S.A. 2014 Supp. 21-6811[a]) to form a single person felony for purposes of calculating his criminal history score. Notably, the defendant never lodged an objection to his criminal history score at sentencing. The defendant appealed, challenging his criminal history score but not on the basis of the misdemeanors’ aggregation. His convictions and sentences were later affirmed by the Court of Appeals. Approximately 7 years after his convictions, the defendant filed a motion to correct an illegal sentence based on his allegation that two of his municipal misdemeanor convictions were uncounseled but resulted in suspended jail sentences. Accordingly, the defendant argued drat the convictions were constitutionally invalid and could not be considered in calculating his criminal history score. 292 Kan. at 626-27.
The district court and the Court of Appeals concluded that the defendant was procedurally barred from challenging tire accuracy of his criminal history score in a motion to correct an illegal sentence because the defendant had already challenged the score on direct appeal. In other words, the defendant was improperly using a motion to correct an illegal sentence as a substitute for a second appeal. Neal, 292 Kan. at 628. This court in Neal disagreed, noting that though a defendant is generally required to raise all available issues on direct appeal, K.S.A. 22-3504(1) specifically states that a court “ ‘may correct an illegal sentence at any time.’ ” 292 Kan. at 630. The Neal court recognized that caselawhad previously defined an illegal sentence as one “ ‘imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the-term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ [Citations omitted]” 292 Kan. at 630. The court reasoned that tire defendant’s challenge to his criminal history score was
“necessarily a challenge to his sentence that the history score helped produce. If the history score is incorrect, it follows that his resulting sentence cannot conform with the statutory provision in the term of the punishment authorized . . . and, consequently, is an illegal sentence. Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim. [Citation omitted.]” 292 Kan. at 631.
Accordingly, the Neal court proceeded to address the merits of the defendant’s argument. 292 Kan. at 631.
A similar result was reached in State v. Weber, 297 Kan. 805, 304 P.3d 1262 (2013), where the defendant directly appealed the district court’s designation of his prior Michigan conviction as a sexually violent crime for purposes of classifying him as an aggravated habitual sex offender and, in turn, imposing an enhanced sentence of life without tire possibility of parole. The State argued that tire defendant was procedurally barred from challenging the classification of tire Michigan conviction on appeal because he had failed to challenge tire classification at sentencing. Additionally, the State argued that defense counsel stipulated at sentencing that the defendant should be sentenced as an aggravated habitual sex offender. 297 Kan. at 813.
The Weber court rejected the State’s waiver argument, stating that
“K.S.A. 22-3504(1) specifically authorizes a court to correct an illegal sentence at any time. We reiterated recently that this means that ‘an illegal sentence issue may be considered for the first time on appeal.’ [Citation omitted.] Moreover, if a prior conviction is erroneously included in the calculation of an enhanced sentence under the Habitual Criminal Act, the resulting sentence is illegal as not conforming to the statutorily authorized term of punishment. [Citation omitted.] Therefore, if the district court erroneously included tire prior Michigan assault conviction in calculating [die defendant’s] enhanced sentence under tire aggravated habitual sex offender provision, the resulting sentence is illegal and is subject to challenge here and now.” 297 Kan. at 813-14.
With regard to the State’s argument concerning defense counsel’s stipulation at sentencing, the Weber court agreed with the State that the defendant “should be bound by his counsel’s stipulation of fact in the district court with respect to his criminal history, i.e., the factual stipulation that Weber was convicted in Michigan of the crime of assault with intent to commit criminal sexual contact in tire second degree.” Weber, 297 Kan. at 814. But the court concluded that tire “factual stipulation does not answer the question before us, which is: what is the legal effect of that prior conviction on the imposition of an enhanced sentence.” 297 Kan. at 814. The court acknowledged that defense counsel had stipulated that the prior Michigan conviction mandated that the defendant receive the enhanced sentence. However, the court noted that in prior cases, it had not permitted parties to stipulate to the legal conclusions drawn from admitted facts. The court stated:
“The legal question of whether [the defendant’s] admitted criminal history was sufficient to meet the requirements of K.S.A. 2009 Supp. 21-4642(c)(l)(B), so as to define him as an aggravated habitual sex offender subject to enhanced sentencing, “ ‘must rest upon the court, uninfluenced by stipulations of the parties.’ ” [Citations omitted.] Therefore, despite the concession of [defense] counsel, ‘we nevertheless must address the accuracy of the purported legal basis of [die defendant’s] concession.’ [Citation omitted]; see also Ritchie Raving, Inc. v. City of Deerfield, 275 Kan. 631, 641, 67 P.3d 843 (2003) (‘Stipulations as to what the law is are not effective and not controlling on this court.’).
“Perhaps more to the point here, ‘Kansas law is clear that a defendant can’t agree to an illegal sentence.’ [Citations omitted.] Accordingly, the State’s alleged procedural bar emanating from a defense stipulation ... is simply unavailing.” Weber, 297 Kan. at 814-15.
It appears that the legal reasoning of Neal and Weber is more sensible than the line of cases holding that a defendant waives a subsequent challenge to the classification of prior convictions or to his or her criminal history score if he or she stipulated or failed to object to the classification or score at sentencing. As Weber indicates, a defendant’s stipulation or failure to object at sentencing will prevent the defendant from later challenging the existence of convictions listed in his or her criminal histoiy. But a stipulation or lack of an objection regarding how those convictions should be classified or counted as a matter of law for the purpose of determining the defendant’s criminal histoiy score will not prevent a subsequent challenge under K.S.A. 22-3504(1) of his or her prior convictions. Weber, 297 Kan. at 814-15. Accordingly, to the extent that Vandervort, Goeller, and McBride stand for the proposition that a legal challenge under K.S.A. 22-3504(1) is waived if the defendant stipulated or failed to object at sentencing to the classification of prior convictions or the resulting criminal history score, those cases are specifically overruled.
The State contends that determining whether a prior burglary conviction or adjudication should be classified as a person or nonperson offense is a factual determination given that the classification is dependent on whether the prior burglary involved a dwelling. See K.S.A. 2014 Supp. 21-6811(d). Because Dickey never objected to the classification of his 1992 burglary adjudication as a person felony pursuant to K.S.A. 2014 Supp. 21-6814(c), the State contends that it was relieved of its burden at sentencing to prove by a preponderance of the evidence that the prior burglary involved a dwelling. See K.S.A. 2014 Supp. 21-6811(d). Accordingly, the State contends that the invited-error doctrine should apply in this case to bar Dickey from challenging the classification of his burglary adjudication on appeal.
The problem with the State’s argument is that Dickey raised a pure legal argument on appeal for why his burglary adjudication was improperly classified as a person felony. As the Court of Appeals’ panel in this case noted:
“Given [die] statutory language [of K.S.A. 2014 Supp. 21-6811(d)], it might appear as if the question presented on appeal—whether the sentencing court erred in counting Dickey’s prior juvenile adjudication for burglary as a person felony and enhancing his sentence—can be answered by deciding whether the State established by a preponderance of the evidence that the 1992 juvenile adjudication for burglary involved a dwelling. But that is not the claim of error asserted by Dickey here. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (‘Other tiran tire fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Emphasis added.]). Dickey claims tire sentencing court violated Apprendi by going beyond the fact that he had a pre-KSGA unclassified prior adjudication for burglary to consider other facts in ultimately deciding that his prior burglary adjudication involved a dwelling and was a person felony, which in turn increased tire penalty for his current crime beyond the prescribed statutory maximum.
“Based on the manner in which Dickey has framed the issue and the cases he relies on in support thereof, tire question of whether the 1992 burglary actually involved a dwelling is irrelevant. Instead, the relevant question is whether the sentencing court was constitutionally permitted to go beyond tire fact that Dickey had a prior adjudication for burglary in 1992 to determine that Dickey’s prior adjudication for burglary qualified as a person felony and then to use that determination to enhance his current sentence. In order to answer that question, we must apply the analysis set forth by tire United States Supreme Court in Descamps v. United States, 570 U.S _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).” Dickey, 50 Kan. App. 2d at 481-82.
Again, the language of K.S.A. 22-3504(1) specifically authorizes a court to “correct an illegal sentence at any time.” This language has generally been interpreted to mean that “an illegal sentence issue may be considered for the first time on appeal.” Floyd, 296 Kan. at 690. This court has defined an “illegal sentence” as “(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutoiy provision, either in the character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). As noted above, in Neal, this court concluded that a challenge to a district court’s criminal history score calculation can be raised pursuant to K.S.A. 22-3504(1) because such a challenge essentially raises a claim that the sentence imposed does not conform with the applicable statutory provision regarding the term of punishment authorized for the current conviction. 292 Kan. at 631.
Though we rely on a different basis tiran the Court of Appeals did to address die merits of Dickey’s argument, we agree widi the Court of Appeals that Dickey’s argument—-a legal challenge to the classification of a prior adjudication for purposes of lowering his criminal history score—can be raised for first time on appeal pursuant to K.S.A. 22-3504(1). See Neal, 292 Kan. at 631.
Whether a prior conviction or adjudication was properly classified as a person or nonperson crime for criminal history purposes raises a question of law subject to unlimited review. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014); see also Makthepharak v. State, 298 Kan. 573, 577-78, 314 P.3d 876 (2013) (Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which this court has unlimited review.).
The Applicability of State v. Mubdock
As noted above, before addressing Dickey’s Descamps v. United States, 570 U.S _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), argument, the Court of Appeals addressed whether this court’s decision in Murdock (holding that all pre-KSGA out-of-state crimes must be classified as nonperson crimes for criminal histoiy purposes) should be applied to the classification issue raised in this case. The Murdock decision considered and resolved two separate issues before reaching its ultimate holding. First, Murdock relied on State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), to conclude as a matter of law that when classifying a prior out-of-state conviction as person or nonperson, the out-of-state crime must be compared to the criminal statute in effect in Kansas at the time the prior out-of-state crime was committed. Murdock, 299 Kan. at 318. Second, because there was not a statutory provision within the KSGA directing how pre-KSGA out-of-state crimes should be classified for criminal history purposes, K.S.A. 21-4710(d)(8) dictated that such crimes had to be classified as nonperson offenses because, prior to tire enactment of the KSGA, classification of crimes as person or nonperson did not exist. Murdock, 299 Kan. at 318-19.
As the Dickey panel recognized, unlike the prior convictions at issue in Murdock, there is a statutorily prescribed mechanism for classifying Dickey s 1992 juvenile adjudication for burglary. K.S.A. 2014 Supp. 21-6811(d) provides that a prior burglary conviction or adjudication will be classified for criminal history purposes as: (1) a person felony if the prior burglary conviction or adjudication involved a dwelling, or (2) a nonperson felony if the prior burglary conviction or adjudication did not involve a dwelling. Accordingly, the classification issue presented in this case is specifically controlled by K.S.A. 2014 Supp. 21-6811(d) and not Murdock. We will now address whether K.S.A. 2014 Supp. 21-6811(d) can be constitutionally applied to Dickey.
Descamps
In a thorough and comprehensive analysis of the United States Supreme Court’s decision in Descamps, the Court of Appeals panel majority concluded that classifying Dickey’s 1992 juvenile adjudication for burglary as a person felony would require judicial fact-finding in violation of Dickey’s constitutional rights as described in Descamps and Apprendi. State v. Dickey, 50 Kan. App. 2d 468, 485-91, 329 P.3d 1230 (2014).
Whether a defendant’s constitutional rights as described under Apprendi were violated by a district court at sentencing raises a question of law subject to unlimited review. State v. Anthony, 273 Kan. 726, 727, 45 P.3d 852 (2002).
Under Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond tire prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury’s territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) (“[Tjhe Sixth and Fourteenth Amendments guarantee a juiy standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.”). A narrow exception exists for judicial fact-finding regarding the existence of a prior conviction because of the procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the typical case under our sentencing guidelines, tabulating a defendant’s prior convictions to determine tihe criminal history score, which usually has the effect of increasing a defendant’s sentence, does not violate a defendant’s jury trial rights. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).
Apprendi is implicated, however, when a district court, for purposes of enhancing a defendant’s sentence for a current conviction, makes findings of fact at sentencing that go beyond merely finding the existence of a prior conviction or the statutory elements that made up the prior conviction. Descamps, 133 S. Ct. at 2288-89. In Descamps, the United States Supreme Court held that a defendant’s prior conviction for burglary under California law could not be counted as a predicate offense for burglary under ACCA, which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA’s “generic burglary” definition, the California burglary statute at issue did not require a “breaking and entering”; it provided that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” Cal. Penal Code § 459 (West 2010). Consequently, in order to determine whether the defendant’s California burglary conviction qualified as a predicate offense under the ACCA, the sentencing court reviewed the underlying facts of the prior conviction to determine whether the facts showed that the defendant accomplished the burglary by breaking and entering. The Descamps Court held that this examination violated Apprendi because the sentencing court engaged in factfinding to determine whether the defendant’s actions satisfied an element not contained within the California burglary statute. See 133 S. Ct. at 2281-87.
To determine whether a prior conviction qualifies as a predicate offense under die ACCA without violating Apprendi, the Descamps Court held diat a sentencing court must use one of two approaches—the categorical approach or the modified categorical approach. Descamps, 133 S. Ct. at 2281-84, 2287. A sentencing court applies the categorical approach when the statute forming the basis of the defendant’s prior conviction contains a single set of elements constituting the crime. A sentencing court simply compares “the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime.” 133 S. Ct. at 2281. If the elements of the prior conviction are the same as, or narrower than, the elements of the corresponding crime under the ACCA, then the prior conviction may be counted as a predicate offense for sentence-enhancement purposes under die ACCA. 133 S. Ct. at 2281, 2283.
The modified categorical approach applies when the statute forming the basis of the prior conviction is a “divisible statute,” i.e., a statute which includes multiple, alternative versions of the crime and at least one of the versions matches the elements of the generic offense. Descamps, 133 S. Ct. at 2281-82, 2284-86. Naturally, when a defendant’s prior conviction arises under a divisible statute, a sentencing court cannot determine whether a defendant’s prior conviction constitutes a predicate offense under the ACCA by merely examining the elements of the statute. Thus, without running afoul of Apprendi, a sentencing court is permitted to look beyond the elements of the statute and examine a limited class of documents to determine “which of a statute’s alternative elements formed tire basis of tire defendant’s prior conviction.” 133 S. Ct. at 2284. Such documents include charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d. 1 (2010).
The Descamps Court clarified that the modified categorical approach is prohibited if the statute is not divisible, i.e., contains one set of elements defining the crime. 133 S. Ct. at 2281-83. And, as the panel in this case astutely pointed out, even if the statute is divisible, tire modified categorical approach may not apply
“because, in some cases, none of the alternative elements will match any elements of the corresponding generic crime. Post -Descamps, a case involving a prior statute of conviction for burglary containing alternative elements, none of which match any element of a generic statute, is virtually indistinguishable from a case involving a prior statute of conviction for burglary containing a single and indivisible set of elements; thus, the modified approach has no role to play.” (Emphasis added.) Dickey, 50 Kan. App. 2d at 487.
See also Descamps, 133 S. Ct. at 2286 (“Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglaiy not [as here] over-broadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not. In that circumstance, a court may look to the additional documents to determine which of the statutory offenses [generic or non-generic] formed the basis of the defendant’s [prior] conviction.” [Emphasis added.])
The categorical approach and modified categorical approach described in Descamps ensure that sentencing courts, when examining a prior conviction for sentencing purposes, do not engage in factfinding in violation of Apprendi by attempting to determine whether a defendant’s actions satisfied an element not contained within the statute under which the defendant’s prior conviction arose. See Descamps, 133 S. Ct. at 2281-87. Though Descamps involved determining whether a prior conviction qualified as a predicate offense under the ACCA, the methods Descamps outlined for making this determination in a constitutionally valid manner necessarily apply to determining whether a prior burglary conviction should be classified as a person or nonperson felony under the KSGA.
Applying Descamps here, K.S.A. 2014 Supp. 21-6811(d) states that a prior burglary conviction or adjudication will be classified as a person felony if the prior burglary involved a “dwelling,” which is defined as “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k). At the time of Dickey s 1992 adjudication, burglary was defined as
“knowingly and without authority entering into or remaining within any: (1) Building, manufactured home, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein.
“Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.” K.S.A. 1991 Supp. 21-3715.
Though the burglary statute forming the basis for Dickey s prior juvenile adjudication was comprised of multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling, i.e., “used or intended for use as a human habitation, home or residence.” K.S.A. 2014 Supp. 21-5111(k). Consequently, employing either a categorical approach or a modified categorical approach to determine whether Dickey s prior burglary adjudication involved a dwelling would be constitutionally prohibited under Descamps and Apprendi. See Descamps, 133 S. Ct. at 2288-89.
Based on the above analysis, the district court was constitutionally prohibited from classifying Dickey s prior burglary adjudication as a person felony because doing so would have necessarily resulted from tire district court making or adopting a factual finding that went beyond simply identifying the statutory elements that constituted the prior burglary adjudication. Because burglary of a “dwelling” (as that term is defined in K.S.A. 2014 Supp. 21-5111[k]) was not included within the statutory elements making up Dickey s prior burglary adjudication, the burglary adjudication should have been classified as a nonperson felony.
Accordingly, we affirm the Court of Appeals’ decision vacating Dickey’s sentence and remand the case to the district court for resentencing with directions that Dickey’s 1992 adjudication for burglary be classified as a nonperson felony for purposes of calculating his criminal history score. Judgment of the district court is reversed and remanded. | [
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Mott, J.:
Joseph L. Swazey, III, appeals his sentence for one count of possession of methamphetamine and one count of fleeing or attempting to elude a police officer. He argues the district court imposed an illegal sentence by sentencing him to prison instead of drug treatment pursuant to K.S.A. 2014 Supp. 21-6824.
Facts
On June 26, 2014, Swazey pled no contest to one count of possession of methamphetamine and one count of fleeing or attempting to elude a police officer. The district court accepted his pleas and found him guilty of both offenses. Prior to sentencing, Swazey filed a motion seeking a downward dispositional or durational departure. In it, he requested that he be sentenced either to probation and drug treatment or, alternatively, to a term of 24 months’ imprisonment. Swazey’s criminal histoiy placed him in drug grid block 5-C, a border box.
Swazey’s sentencing hearing was held on July 25, 2014. During the hearing, Swazey’s attorney requested that Swazey receive “Senate Bill 123 treatment,” referring to drug treatment. The district court denied this request and sentenced him to a controlling du-rational departure sentence of 24 months in prison. Swazey appeals his sentence.
An illegal sentence may be corrected at any time
Swazey argues that K.S.A. 2014 Supp. 21-6824 required the district court to grant him probation with drug treatment rather than a prison sentence. As such, Swazey argues that his prison sentence was an illegal sentence. Although Swazey requested drug treatment at sentencing, he did not specifically raise this argument below. But an illegal sentence may be corrected at any time, even if the argument is raised for the first time on appeal. State v. Kelly, 298 Kan. 965, 975, 318 P.3d 987 (2014); K.S.A. 22-3504.
“An ‘illegal sentence’ is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).
Whether a sentence is illegal is a question of law subject to de novo review by this court. Kelly, 298 Kan. at 975.
The optional nonprison sanction statute vs. the mandatory drug treatment statute
Swazey argues that the nonprison sanction outlined in K.S.A. 2014 Supp. 21-6824 is mandatory and controls in this case. The State, however, argues that K.S.A. 2014 Supp. 21-6824 is not mandatory and should be interpreted in a way that does not conflict with the optional nonprison sanction as contemplated by K.S.A. 2014 Supp. 21-6805(d). To resolve these arguments, this court must engage in statutory interpretation, which is a question of law subject to unlimited review. State v. Kendall, 300 Kan. 515, 520, 331 P.3d 763 (2014).
K.S.A. 2014 Supp. 21-6824(a) establishes a nonprison sanction of certified drug abuse treatment programs for certain offenders sentenced on or after November 1, 2003. Under the statute, placement of adults in such treatment programs is limited to those convicted of certain crimes, such as unlawful possession of controlled substances. See K.S.A. 2014 Supp. 21-6824(a). A defendant further qualifies for treatment under the statute if he or she has no previous felony convictions for certain drug crimes and falls into grid blocks 5-C, 5-D, 5-E, 5-F, 5-G, 5-H, or 5-1 of the sentencing guide-fines for drug crimes. K.S.A. 2014 Supp. 21-6824(a)(l). Swazey met these requirements because his primaiy offense was possession of methamphetamine and his criminal history placed him in grid block 5-C. But these are not the only qualifications listed in the statute.
K.S.A. 2014 Supp. 21-6824(b)-(c) also states:
“(b) As a part of the presentenoe investigation pursuant to K.S.A. 2014 Supp. 21-6813, and amendments thereto, offenders who meet the requirements of subsection (a), unless odierwise specifically ordered by the court, shall be subject to:
(1) A drug abuse assessment which shall include a clinical interview with a mental health professional and a recommendation concerning drug abuse treatment for the offender; and
(2) a criminal risk-need assessment. The criminal risk-need assessment shall assign a high or low risk status to the offender.
“(c) If tire offender is assigned a high risk status as determined by the drug abuse assessment performed pursuant to subsection (b)(1) and a moderate or high risk status as determined by the criminal risk-need assessment performed pursuant to subsection (b)(2), the sentencing court shall commit the offender to treatment in a drug abuse treatment program until tire court determines tire offender is suitable for discharge by the court. The term of treatment shall not exceed 18 months. The court may extend the term of probation, pursuant to subsection (c)(3) of K.S.A. 2014 Supp. 21-6608, and amendments thereto. The term of treatment may not exceed the term of probation.”
In summaiy, the statute provides that an offender should receive a drug abuse assessment and a criminal risk-need assessment as part of his or her presentence investigation unless a court specifically orders otherwise. If the offender is assigned a high risk status by the drug abuse assessment and either a moderate or high risk status by the criminal risk-need assessment, dien “the sentencing court shall commit the offender to treatment in a drug abuse treatment program until the court determines the offender is suitable for discharge by the court,” but in no case longer than 18 months. (Emphasis added.) K.S.A. 2014 Supp. 21-6824(c).
This mandatory statutory language is at odds with K.S.A. 2014 Supp. 21-6805(d), which states in part: “If an offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H, 4-1, 5-C or 5-D, the court may impose an optional nonprison sentence as provided in subsection (q) of K.S.A. 2014 Supp. 21-6804, and amendments thereto.” K.S.A. 2014 Supp. 21-6804(q) requires a court to make the following findings on the record before imposing a nonprison sanction:
“(1) An appropriate treatment program exists which is likely-to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and
“(2) the recommended treatment program is available and the offender can be admitted to such program within a reasonable period of time; or
“(3) the nonprison sanction will serve community safety interests by promoting offender reformation.”
The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. This court must first attempt to ascertain legislative intent by reading the language of tire statute and giving common words their ordinary meanings. When a statute is plain and unambiguous, this court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Cady v. Schroll, 298 Kan. 731, 738-39, 317 P.3d 90 (2014). With any perceived ambiguity, this court must determine if it is possible to interpret the provisions of the various statutes in play in a way that renders them compatible, not contradictory. State v. Van Hoet, 277 Kan. 815, Syl. ¶ 2, 89 P.3d 606 (2004). Here, when giving common words their ordinary meanings, there does appear to be an ambiguity in the statutes. K.S.A. 2014 Supp. 21-6805(d) establishes a discretionary nonprison sanction for grid box 5-C, while K.S.A. 2014 Supp. 21-6824(c) states that if certain conditions are met, the sentencing court “shall” commit an offender falling into grid box 5-C to drug treatment.
There is no way for this court to reconcile the conflicting language of these sentencing statutes. If a sentencing court is required to commit an offender to treatment in a drug abuse program, there is no discretion. If a sentencing court is allowed discretion on the issue, there is no requirement. It should be noted that we have looked at the entirety of these statutes in an attempt to reconcile them and give effect to all of their provisions. But what this court found in the text actually cuts against the position of the State. There is evidence in K.S.A. 2014 Supp. 21-6824 that the legislature knew how to retain the effect of existing sentencing provisions, if it had chosen to do so. Pursuant to K.S.A. 2014 Supp. 21-6824(e), offenders in grid-box 5-A or 5-B are “subject to the departure sentencing statutes of the revised Kansas sentencing guidelines act.” The fact the legislature did not see fit to craft a similar provision for offenders in grid-box 5-C is an indication the legislature meant the mandatory provisions of K.S.A. 2014 Supp. 21-6824 to take effect.
The State argues that no ambiguity exists between K.S.A. 2014 Supp. 21-6804, K.S.A. 2014 Supp. 21-6805, and K.S.A. 2014 Supp. 21-6824. Yet, it incongruously acknowledges that the statutes “overlap.” The State also argues that “K.S.A. 21-6804(q) does not explicitly reference [K.S.A. 2014 Supp. 21-6824] because it also applies to crimes other than drug possession crimes.” In other words, it acknowledges that K.S.A. 21-6824 is a more specific statute than K.S.A. 2014 Supp. 21-6804. A specific statute controls over a general statute. See Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013). Therefore, for offenders that meet the criteria outlined in K.S.A. 2014 Supp. 21-6824, that statute controls their sentence.
The State also argues that construing K.S.A. 2014 Supp. 21-6824 to require a sentencing court to commit an offender to drug treatment creates “nonsensical results.” Even when statutory language is clear, this court must construe statutes to avoid unreasonable or absurd results. Northern Natural Gas Co. v. ONEOKField Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied _U.S. _, 134 S. Ct. 162 (2013). The State argues that “[i]t does not make sense that a judge has discretion to order the assessment, but once ordered, the judge loses discretion on probation.” It cites no authority supporting its apparent argument that a district judge must have discretion at every stage of a defendant’s sentencing. In fact, our Supreme Court has stated that “[t]he sentencing of a defendant is strictly controlled by statute.” State v. Guder, 293 Kan. 763, Syl. ¶ 1, 267 P.3d 751 (2012). There is nothing inherently absurd or unreasonable about requiring a district court to impose a term of probation after it has already chosen to allow the defendant to be subjected to assessments meant to gauge his amenability to drug treatment.
The State also argues that it would be nonsensical for a sentencing statute to mandate drug treatment in cases where an individual’s drug abuse and criminal risks are elevated, yet allow a district court to impose a prison sentence on a low risk offender. There is nothing absurd or unreasonable about targeting a certain population for drug treatment. Further, a recent article in the University of Kansas Law Review cited research indicating that drug courts in other jurisdictions tend to be most effective for high risk, high need drug offenders. Comment, A Better Way: Rethinking SB 123 Probationary Drug Treatment in Kansas, 62 U. Kan. L. Rev. 1365, 1376 (2014). This is one plausible reason to target high risk offenders in Kansas. It is not our place to question the wisdom of legislative policy in the process of interpreting statutes; we are duty bound to operate within the framework of the legislature’s words.
Finally, since the legislature has permitted the existence of conflicting statutory provisions, the rule of lenity must be considered. When there is ambiguity between statutory provisions imposing a penalty for a crime, it should be resolved in a defendant’s favor. State v. Horn, 288 Kan. 690, Syl. ¶ 3, 206 P.3d 526 (2009). As with tire other canons of statutory interpretation, the rule of lenity points us toward resolving the conflicting provisions in favor of Swazey.
The need for factual findings regarding the raw LSI-R score on remand
In this case, Swazey completed a drug abuse assessment referred to as a SASSI. It indicated that Swazey had a “high probability of having a substance dependence disorder.” Although this finding does not directly correspond with the statutory term “high risk,” Swazey’s results appear to qualify him for treatment under K.S.A. 2014 Supp. 21-6824(c). Swazey also completed a criminal risk-need assessment called the Level of Service Inventory—Revised (LSI-R). The report, however, did not assign a risk classification to Swa-zey under this test. Rather, it provided a numerical score of 35 and stated that his supervision level was “ISL I.” There is nothing in the record that explains how Swazey’s score of 35 should be interpreted or how a person’s supervision level correlates with risk assessments. Further, there is no statute or regulation that could assist in interpreting the raw score from Swazey’s LSI-R.
In sum, the record is devoid of any evidence establishing that Swazey was assigned a moderate or high risk status by the LSI-R. The district court did not make any explicit findings on that point either. If Swazey s LSI-R score placed him in the moderate or high risk category, then he was entitled to mandatory drug treatment and probation rather than the prison sentence he received. Given that the district court did not consider the mandatory provisions of K.S.A. 2014 Supp. 21-6824 at time of sentencing, we find Swazey s sentence was illegally imposed. Accordingly, we vacate the sentence and remand for additional findings and resentencing in accordance with this opinion.
Sentence vacated; remanded with directions. | [
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Powell, J.:
Derrick Buell appeals from his sentences for robbery and attempted kidnapping, arguing the district court erred in classifying his 2002 Florida juvenile adjudications of burglary of a dwelling and burglary of a dwelling while armed as person offenses. Buell claims that by doing so, the district court violated his constitutional rights as articulated in Apprendi and Descamps. We disagree and affirm.
Factual and Procedural Background
In Februaiy 2015, pursuant to a plea agreement, Buell pled guilty to robbery and attempted kidnapping. According to the presentence investigation report (PSI), Buell’s criminal history included two 2002 Florida juvenile adjudications, one labeled as burglaiy of a dwelling and one labeled as burglaiy of a dwelling while armed. At his sentencing, Buell objected to the classification of the adjudication for burglary of a dwelling while armed as a person felony, arguing there was no comparable Kansas offense because of the different intent requirements of burglary in Florida and Kansas. After examining the Florida charging document and a deposition, the district court overruled this objection. Buell did not object before the district court to the classification of his adjudication for burglary of a dwelling as a person felony. Accordingly, the district court scored Buell’s criminal history as A and sentenced him on both counts to a total of 122 months’ imprisonment with 24 months’ postrelease supervision.
Buell timely appeals.
Did the District Court Incorrectly Classify Buell’s Prior Florida Juvenile Adjudications When Calculating Buell’s Criminal History Score?
On appeal, Buell argues the district court erred in classifying both of his 2002 Florida burglaiy juvenile adjudications as person offenses. Specifically, Buell argues the district court had to make improper factual determinations in order to find these Florida burglaries comparable to Kansas’ burglary statute, violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In response, the State makes a number of arguments: First, the issue is not properly preserved for appeal; second, Buell waived his right to a jury at sentencing and, therefore, there was no error in the district courts failure to submit any facts to a jury; and third, the district court did not err in calculating Buell’s criminal history score. We will address each argument in turn.
A. Preservation
The State first argues the issue was not properly preserved for appeal because Buell’s failure to object to the inclusion of his Florida adjudication for burglary of a dwelling in calculating his criminal histoiy score was a de facto admission that the prior adjudication was comparable to Kansas’ burglaiy statute to malee it a person felony.
The State is correct that, in general, a party’s failure to raise an issue below precludes appellate review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, the State’s argument falls short for two reasons. First, Buell did object to the classification of his Florida adjudication for burglary of a dwelling while armed as a person felony before the district court; second, as to the other Florida adjudication, our Supreme Court has recently held that a “legal challenge to the classification of [a] prior burglary adjudication can be raised for the first time on appeal.” State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015). To this, the State argues that Dickey was wrongly decided. However, we are “duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position.” State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). As there is no such indication from our Supreme Court that it is departing from Dickey, we are bound to follow it. Therefore, Buell may raise this argument for the first time on appeal.
B. Waiver of Right to Jury at Sentencing
The State next argues that Buell waived his right to a jury trial at sentencing. Specifically, the State argues that because Buell waived his right to a jury trial, he also waived his right to have a juiy determine the existence of facts beyond those to which he pled that increased his sentence. See State v. Williams, 259 Kan. 432, 436, 913 P.2d 587 (1996).
However, our Supreme Court has rejected this argument in the context of upward departure sentences. “[A] defendant’s admission to each of the elements of the criminal offense in conjunction with a guilty plea ‘“is in no way an admission that the sentencing factors used to increase [his or her] sentence were proved beyond a reasonable doubt.’”” State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010) (quoting State v. Cody, 272 Kan. 564, 565, 35 P.3d 800 [2001]). While a defendant may specifically waive the right to have a jury decide sentence-enhancing factors, “[a] waiver of the trial juiy standing alone, does not effectively waive the defendant’s right to have a jury for the upward durational departure sentence proceeding.” 291 Kan. at 11. Accordingly, we reject the State’s contention that Buell’s juiy trial waiver constituted a waiver of his right to require each fact used to enhance his sentence beyond tire statutory maximum to be proven to a jury beyond a reasonable doubt.
C. Calculation of Criminal Histoi-y Score
Having dispensed with the State’s procedural roadblocks, we now turn to the merits of Buell’s appeal: whether the district court improperly made findings of fact in order to classify Buell’s prior Florida burglary adjudications as person felonies, thereby increasing his sentence beyond the statutory maximum. The question presented involves the interpretation of three statutes: (1) K.S.A. 2015 Supp. 21-6811, part of the Kansas Sentencing Guidelines Act (KSGA); (2) K.S.A. 2011 Supp. 21-5807, die Kansas burglary statute in effect at the time Buell’s current crime of conviction (robbery) was committed; and (3) Fla. Stat. § 810.02 (2002), the Florida burglary statute. “Whether a prior conviction should be 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.” State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015).
Our analysis begins with the KSGA. The KSGA provides that criminal sentences are essentially based on two controlling factors: the criminal histoiy of the defendant and the severity level of the crime committed, with person crimes having a greater impact. See K.S.A. 2015 Supp. 21-6804(c); State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003), overruled in part on other grounds by Dickey, 301 Kan. 1018. A defendant’s criminal history score is calculated by tabulating the offenders prior convictions to generate a criminal history score, with A being the highest and I being the lowest. See K.S.A. 2015 Supp. 21-6803(d); K.S.A. 2015 Supp. 21-6804(a). Prior convictions or adjudications are classified as either misdemeanors or felonies, person or nonperson, with some exceptions. See K.S.A. 2015 Supp. 21-6810; K.S.A. 2015 Supp. 21-6811. The more extensive the defendants criminal history and/or the greater the severity level of the crime, the lengthier tire guideline sentence. See K.S.A. 2015 Supp. 21-6804(a).
1. Classification of Buell’s Florida burglary adjudications falls under K S.Á. 2015 Supp. 21-6811(e).
Because Buell’s 2002 Florida burglary juvenile adjudications are at issue, two sections of K.S.A. 2015 Supp. 21-6811 are possibly applicable in determining if his prior burglary adjudications were properly classified. K.S.A. 2015 Supp. 21-6811(d) governs the classification of prior burglary convictions and adjudications but does not address prior out-of-state convictions and adjudications. K.S.A. 2015 Supp. 21-6811(e) governs the classification of prior out-of-state convictions and adjudications but does not address prior burglary convictions and adjudications. Both Buell and the State assert that K.S.A. 2015 Supp. 21-6811(e) is applicable, which is consistent with Kansas Supreme Court precedent but contrary to some more recent opinions emanating from our court. See State v. O’Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014) (using K.S.A. 21-4711[e], the prior codification of K.S.A. 2015 Supp. 21-6811[e], to classify a prior Florida burglary adjudication); State v. Williams, 299 Kan. 870, 873-75, 326 P.3d 1070 (2014) (same, classifying prior Ohio aggravated burglary conviction). But see State v. Mullens, 51 Kan. App. 2d 1114, 1117, 360 P.3d 1107 (2015) (using K.S.A. 2014 Supp. 21-6811[d] to classify prior Texas burglary adjudication); see also State v. Smith, No. 113,297, 2016 WL 1391767, at *6-7 (Kan. App. 2016) (unpublished opinion) (utilizing K.S.A. 2014 Supp. 21-6811[d] to determine comparability of South CaroMna burglary statute); State v. Gonzales, No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpubKshed opinion) (utilizing K.S.A. 2014 Supp. 21-6811[e] to determine comparability of Arizona burglary statute), petition for rev. filed February 22, 2016; State v. Hill, No. 112,545, 2015 WL 8590700, at *3-6 (Kan. App. 2015) (unpublished opinion) (utilizing both K.S.A. 2014 Supp. 21-6811[d] and [e] to determine comparability of Missouri burglary statute), petition for rev. filed January 6, 2016.
As both parties agree that K.S.A. 2015 Supp. 21-6811(e) is applicable, and because the plain language of the subsection applies to convictions from “other state systems,” we will use K.S.A. 2015 Supp. 21-6811(e) in scoring Buell’s Florida burglary adjudications.
The relevant portion of K.S.A. 2015 Supp. 21-6811(e) provides:
“(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offenders criminal history.
“(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in Kansas.
“(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on die date die current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime.
“(4) Convictions or adjudications occurring within . . . other state systems . . . are considered out-of-state convictions or adjudications.
“(5) The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by die state by a preponderance of the evidence.”
Subsection (e) requires out-of-state convictions or adjudications to be used in calculating a defendants criminal history score. Whether the out-of-state conviction or adjudication is to be classi fied as a misdemeanor or felony depends upon the convicting jurisdiction. Then, the out-of-state conviction or adjudication must be classified as a person or nonperson crime, and this is done by referring to the comparable Kansas offense in effect at the time the defendant committed his underlying crime. If there is no comparable Kansas crime, then the out-of-state adjudication is scored as a nonperson offense.
2. Buells Florida burglary adjudications are felonies.
In accordance with K.S.A. 2015 Supp. 21-6811(e)(2), our first task is to determine whether Buells Florida adjudications for burglary are properly classified as misdemeanors or felonies. This is done by examining how Florida classifies Buells two adjudications. Unfortunately, the record on appeal does not contain the journal entries of Buells Florida adjudications; we simply have the PSI, which lists them as “burglary of a dwelling” and “burglary of a dwelling while armed.” Buell never challenged their classification as felonies before the district court, and he does not challenge the felony classification of these adjudications before us. Moreover, Buell appears to concede that his conviction for “burglary of a dwelling while armed” falls under Fla. Stat. § 810.02(2)(b) (2002), which classifies such a burglary as a “felony of the first degree.” As for Buell’s other Florida adjudication for “burglary of a dwelling,” Buell also appears to concede this adjudication falls under Fla. Stat. § 810.02(3)(b) (2002), which classifies such a burglary as a “felony of the second degree.” Thus, Buell’s Florida burglary adjudications were properly classified as felonies by the district court.
3. Buell’s Florida burgjary adjudications are person crimes.
Having determined that both Florida adjudications are felonies, our next task is to classify them as person or nonperson. According to the KSGA, we do this by referring to the comparable Kansas offenses in effect at the time the current crime of conviction was committed. K.S.A. 2015 Supp. 21-6811(e)(3). It is well established that in evaluating what is a comparable offense under the KSGA, “[t]he essential question is whether the offenses are similar in nature and cover similar conduct.” State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338 P.3d 1236 (2014). We are to look for the Kansas offense that is the “closest approximation” or most “comparable.” Vanderoort, 276 Kan. at 179. In making this comparison, the elements of each out-of-state crime do not need to be identical to the elements of a Kansas crime for them to be comparable. 276 Kan. at 179. Offenses may be comparable “even when the out-of-state statute encompassed some acts not necessarily encompassed by the Kansas statute.” State v. Riolo, 50 Kan. App. 2d 351, 356-57, 330 P.3d 1120 (2014), rev. denied 302 Kan. 1019 (2015).
With respect to the Florida burglary statute, our Supreme Court has already specifically answered the question of what Kansas crime is comparable: “Obviously, the comparable Kansas offense for a Florida burglary would be our version of burglary.” O’Connor, 299 Kan. at 823. The Kansas burglary statute in effect at the time Buell committed his current crimes states in relevant part:
“(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexual battery therein;
(2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein.
“(c)(1) Burglary as defined in:
(A) Subsection (a)(1) is a severity level 7, person felony;
(B) subsection (a)(2) is a severity level 7, nonperson felony;
(C) subsection (a)(3) is a severity level 9, nonperson felony.
(2) Aggravated burglary is a severity level 5, person felony.” K.S.A. 2011 Supp. 21-5807.
It appears Buell was adjudicated under Fla. Stat. § 810.02(3)(b) (2002) for burglary of a dwelling and under Fla. Stat. § 810.02(2)(b) (2002) for burglary of a dwelling while armed. Fla. Stat. § 810.02 (2002) states in pertinent part:
“(l)(a)... ‘burglary’ means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
“(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weaponf.]
"(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains.
(b) Dwelling, and there is not another person in tire dwelling at the time the offender enters or remains.”
However, Buell contends that the Kansas burglary statute is not comparable. Ignoring O'Connor and relying instead on Apprendi and Descamps, he argues the Florida burglary statute is not comparable as it criminalizes a broader range of conduct than the Kansas burglary statute because the intent required to commit burglary in Florida is broader than in Kansas. The Florida statute criminalizes conduct in which a person enters into or remains in a dwelling with the intent to commit an offense therein, whereas the Kansas burglary statute criminalizes conduct in which a person enters into or remains within a dwelling with the intent to commit a felony, theft, or sexual battery. Fla. Stat. § 810.02(l)(a) (2002); K.S.A. 2011 Supp. 21-5807(a). Buell argues that because of this, the district court should have found his Florida burglary adjudications not to be comparable to any Kansas crime arid scored them as nonperson felonies as required by K.S.A. 2015 Supp. 21-6811(e)(3). Buell complains the district court engaged in unconstitutional factfinding when scoring his Florida burglary adjudications as person felonies instead. We disagree.
“Under Apprendi, ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury’s territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) (‘[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.’). A narrow exception exists for judicial factfinding regarding the existence of a prior conviction because of the procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in tire typical case under our sentencing guidelines, tabulating a defendant’s prior convictions to determine the criminal history score, which usually has the effect of increasing a defendant’s sentence, does not violate a defendant’s juiy trial rights. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).” Dickey, 301 Kan. at 1036.
Buell correctly points out that when the district court is required to rely on facts outside of the mere fact of a prior conviction, then Apprendi is implicated. In Descamps, 133 S. Ct. 2276, the United States Supreme Court held that a defendant’s prior conviction for burglary under California law could not be counted as a predicate offense for burglary under the federal Armed Career Criminal Act (ACCA), which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA’s “general burglary” definition, the California burglary statute at issue did not require unlawful entry as do most burglary laws; it provided that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” Cal. Penal Code Ann. § 459 (West 2010). The Descamps Court stated that the sentencing court would have had to look at Descamps’ prior burglaries in order to determine whether he did break and enter or merely shoplifted in order to count the prior burglaries for ACCA purposes. The Court held that such an inquiry raised Sixth Amendment concerns because it required the sentencing court to invade tire jury’s factfinding territory. See 133 S. Ct. at 2281-87.
To determine whether a prior conviction qualified as a sentence enhancer under the ACCA, the Descamps Court held that a sentencing court must use one of two approaches—the categorical approach or the modified categorical approach. 133 S. Ct. at 2281-84, 2287; see also Dickey, 301 Kan. at 1036-39 (detailed discussion of categorical versus modified categorical approaches). Under the categorical approach, the sentencing court is to simply “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the "generic’ crime.” 133 S. Ct. at 2281. If the elements of die prior conviction are the same as or narrower than the elements of the corresponding crime under the ACCA, then the prior conviction may be counted as a predicate offense for sentence enhancement purposes under tíre ACCA. 133 S. Ct. at 2281, 2283.
The modified categorical approach applies when the statute defining the elements of the prior offense in state law is broader than the corresponding generic offense as defined in the ACCA. Descamps, 133 S. Ct. at 2281, 2283-84. However, this approach may only be utilized when the prior conviction involves a “divisible statute,” meaning a statute which comprises multiple, alternative versions of the crime, at least one of which matches the elements of the generic offense. 133 S. Ct. at 2281-82, 2284-85. In such an instance, the sentencing court is permitted to look beyond the elements in the statutes and examine limited extra-statutory materials to determine “which of a [prior] statute s alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. Such extra-statutory materials include charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
Our Supreme Court in Dickey, a case which involved how to properly score a pre-KSGA Kansas burglary as either a person or nonperson crime, explicitly adopted the Descamps categorical/ modified categorical approach in “determining whether a prior burglary conviction should be classified as a person or nonperson felony under the KSGA.” 301 Kan. at 1039. The court ultimately held that although the pre-KSGA Kansas burglary statute under which Dickey had previously been convicted was divisible, as it had “multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling.” 301 Kan. at 1039. Therefore, it was constitutionally impermissible to classify Dickey’s prior burglary adjudication as a person crime because to do so would have required judicial factfinding beyond merely identifying the statutory elements. 301 Kan. at 1039-40.
In our view, Buell’s reliance on Descamps and its categorical/ modified categorical approach is inapplicable for the reasons he states. First, under the KSGA, there need not be matching ele ments for an out-of-state offense to be comparable to a Kansas offense. Williams, 299 Kan. at 873. Our Supreme Courts holding in O’Connor, 299 Kan. at 823, reflects that the comparability between the Florida definition of burglary and the Kansas definition of burglary is obvious despite their differing elements. Moreover in Williams, the defendant made an argument similar to the one Buell makes before us: because Ohio’s burglary statute did not require the same specificity of intent as the Kansas burglary statute, they were not comparable. Our Supreme Court rejected this argument, holding that in determining the comparability of an out-of-state offense with a Kansas offense, there need not be a review “of the identicalness of the elements of the crimes identified in the out-of-state and in-state statutes.” 299 Kan. at 875. While it is true that O’Connor and Williams predate Dickey, it is significant in our view that Dickey did not overrule O’Connor or Williams, nor did it reject the long-standing comparability approach utilized in these cases. See 301 Kan. at 1039; State v. Moore, 52 Kan. App. 2d 799, 814, 377 P.3d 1162 (2016),-(Dickey did not adopt “identical or narrower rule” because doing so would have required overruling prior caselaw establishing that comparable offenses do not have to be identical).
The requirement that crimes merely be comparable differs from the federal ACCA, which “intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws of the State of conviction.” Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). In fact, we observe that the categorical approach existed before Apprendi and was created by the federal courts to apply the enhancement provisions in the ACCA. 495 U.S. at 588. Only later was this approach, and its modified version, recognized as suitable to prevent Apprendi violations. Descamps, 133 S. Ct. at 2288. That difference is exposed in the present case because without any impermissible judicial factfinding and in accordance with K.S.A. 2015 Supp. 21-6811(e)(2), we have already determined that Buell’s Florida burglary adjudications were felony crimes simply because .the state of Florida classified them as such and, without matching elements, our Supreme Court has already declared the Kansas burglary statute to be comparable to Florida’s burglary statute.
Second, the Descamps rubric is not applicable because intent is irrelevant in the next step of the KSGA analysis. Remember that under Apprendi, 530 U.S. at 490, it is impermissible to rely on a fact that has not been proven to enhance a defendant’s punishment beyond the statutory maximum. See State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001) (maximum punishment is that authorized by jury’s verdict). It is undisputed that Buell’s Florida burglary adjudications were felonies. As the lowest form of a felony under the KSGA is a nonperson felony (noncomparable out-of-state felonies are nonperson felonies too), a finding that the Florida burglary statute is comparable to the nonperson form of the Kansas burglary statute does not run afoul of Apprendi, even if we assume factfinding was required because it does not enhance Buell’s sentence.
The only way to enhance Buell’s punishment is to classify his Florida burglaries as person felonies because having two person felonies in his criminal history increases Buell’s criminal history score, thereby increasing the sentencing range for his crimes. Disregarding aggravated burglary, in Kansas only one element separates a person felony burglary from a nonperson felony burglary— whether the burglary was committed in a dwelling. K.S.A. 2011 Supp. 21-5807(c)(l)(A). Other than a burglary committed with the intent to commit the theft of a firearm, which is a higher severity level nonperson felony, the level of intent required of nonperson burglary is the same as person burglary. Thus, intent is irrelevant to the enhancement of Buell’s punishment and employing Descamps’ categorical or noncategorical approach to ferret out intent is simply unnecessary.
Therefore, contrary to Buell’s argument and consistent with Dickey, use of the modified categorical approach as described in Descamps is required when examining whether a dwelling was involved in Buell’s Florida burglary convictions in order to prevent any improper judicial factfinding. See Dickey, 301 Kan. at 1039. However, unlike the burglary statute forming the basis for Dickey’s prior juvenile burglary adjudication which did not contain an element requiring the structure burglarized to be a dwelling, Flori da’s bui'glary statute is divisible, and the provisions under which Buell was convicted do contain alternative elements which include burglarizing a dwelling. See 301 Kan. at 1039; Fla. Stat. § 810.02 (2002). Moreover, because Buell has already conceded that his Florida burglaries were committed in dwellings, the district court was not required to examine the “limited class of documents to determine which of a statute’s alternative elements formed the basis of tire defendant’s prior conviction[s].’” 301 Kan. at 1038 (quoting Descamps, 133 S. Ct. at 2284). Accordingly, the district court was correct when it classified Buell’s two 2002 Florida juvenile burglary adjudications as person felonies.
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Granted.
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The opinion of the court was delivered by
Biles, J.;
Kishen L. Woods appeals his conviction and sentence for first-degree premeditated murder following the shooting death of his wife in broad daylight on a residential street outside their Wichita home. Woods advances several claims, some of which are interrelated. He contends the district court erred by: (1) failing to conduct an adequate hearing about his competence to stand trial; (2) finding him competent to stand trial; (3) failing to sua sponte order a second competency evaluation later in the proceedings due to his erratic behavior; (4) finding his confession to tire police was freely and voluntarily given; (5) limiting the defense voir dire of potential jurors regarding mental illness and mental disability; (6) overruling his claim of insufficient evidence to support the first-degree murder conviction; (7) refusing to give a lesser included offense instruction on voluntary manslaughter; and (8) committing cumulative error. As to sentencing, he argues an Apprendi violation occurred when the district court ordered him to register as a violent offender, and further error when the district court had Woods sign a Notice of Duty to Register. We affirm.
Factual and Procedural Background
Antonia Woods-Cratic sustained three gunshot wounds. One entered her left arm, exited her shoulder, and struck her jaw. The coroner testified this was consistent with someone lifting their arm as if to protect themselves from getting hit by something. A second shot entered the left side of her abdomen and traveled down into her left buttock. A third bullet entered her left scalp over her ear and perforated her brain. She died from the gunshot wound to the head. The coroner could not determine tire order of the shots fired. Bullet fragments found in Woods-Cratic’s body were identified as being fired from Woods’ revolver.
Woods was apprehended at the scene. He made several incriminating statements to tire arresting officer. He was also questioned by detectives in a videotaped interview a short time later at the police station, during which he admitted killing his wife. A jury convicted him of premeditated first-degree murder and criminal possession of a firearm.
Although many facts in this case are relevant to more than one issue, we attempt to provide the facts in a logical order as pertinent to the issue presented without unnecessary duplication.
Competence to Stand Trial
Woods advances three challenges regarding his competency to stand trial. First, he argues the competency hearing was inadequate. Second, he contends the district court erred when it concluded he was competent to stand trial. Third, he claims the court should have sua sponte ordered a second competency evaluation. None of tírese issues were raised by Woods below because he actually objected to the court’s independent inquiry into his competence. We hold there was no error.
Additional facts
During a pretrial motions hearing, Woods’ attorney informed the court that Woods had been previously diagnosed with schizophrenia and was not taking medication. Counsel said she had discussed a mental disease or defect defense with Woods, but Woods strongly preferred not pursuing it. Counsel stated Woods understood the charges against him and had been able to assist in his defense, but she believed he suffered from mental illness. Woods repeatedly interrupted, objecting to any discussion of mental illness. He frequently characterized the subject as insulting and stated he was an intelligent person. He made numerous other comments during this proceeding, such as stating his belief that tire court could not help him, and declaring at one point, “It ain’t really no help if the evidence that the State have against Kishen Woods.”
The district court initially ordered a psychological evaluation, but that order was later modified to require a competency evaluation under K.S.A. 2011 Supp. 22-3302. The district court stated it believed Woods understood the charges but was not assisting in making his defense. The court also indicated it didn’t know if “that was because it was a conscious decision or because of some component of psychological distress he’s suffering from.” Woods again objected to the court-ordered evaluation stating, “I already been down that road several years ago.” He said he knew he was “not incompetent and I don’t want to be wasting my time and my months and any more weeks on the same issue of this case.”
The court-ordered competency evaluation was conducted by COMCARE, a Sedgwick County mental health organization where Woods had previously received services. The evaluator noted Woods had been diagnosed in 2009 with polysubstance dependence during a restorative treatment for an earlier competency issue in another criminal case. Woods’ diagnoses between 2009 and 2011 included “Schizophrenia Paranoid Type and Polysubstance Dependence.” At the time of the current evaluation, Woods’ primary diagnosis was “Adjustment Disorder Unspecified,” with a notation that “his impulsive behaviors . . . are reflective of his lower level of intellectual functioning and Antisocial Personality Disorder, as diagnosed by [Larned State Security Hospital] medical staff in 2009.”
The evaluator concluded that Woods did not present with psychotic symptoms, and, for the most part, his thought processing was logical and thought content normal. His intellectual functioning was previously documented to be in the mild mental retardation range, and the evaluator explained Woods “is especially sensitive about this diagnosis.” Woods said several times during the evaluation that he was “highly intelligent” and understood the charges, the penalty, the courtroom procedures, and roles of the participants.
The evaluator determined Woods was competent to understand the nature of the proceedings and assist in his defense. The evaluator further noted Woods could identify his attorney and had said he would continue working with her, believing she would “ ‘sup port me the best she can.’ ” The evaluation concluded by observing that Woods’ conversation was at times erratic, but “it was likely not related to psychotic symptoms or mood disorder, but his effort to derail the process.”
A competency hearing was held, during which Woods erupted into a tirade. He characterized the competency evaluation as an insult and indicated frustration that it was taking so long to begin trial. For example, he interjected, “Do you want to convict me of a murder case or do you want to insult my intelligence.... Because I’m tired . . . I’m tired of you bringing me up in here and keep insulting me a black man.” Woods’ outbursts continued through several attempts by the district court to complete the competency hearing. Eventually, the court read several sections from the COM-CARE report into evidence and noted the evaluation had concluded that Woods was competent. In ruling Woods competent to stand trial, the district court stated, “I will defer to the professional in this case. . . . She has deemed in her opinion you are competent for trial.”
Woods’ competency to stand trial was not mentioned again during the proceedings, but there were a few instances when the court addressed Woods’ behavior on the record during trial. Those will be discussed in the context of Woods’ claim that the court should have sua sponte ordered a second evaluation.
Competency hearings under Kansas law
The criminal trial of an incompetent person violates due process. Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992). In Kansas, K.S.A. 22-3301 et seq. governs competency to stand trial. A defendant is incompetent to stand trial if charged with a crime and, because of mental illness or defect, that defendant is unable: “(a) To understand the nature and purpose of the proceedings against [the defendant]; or (b) to make or assist in maldng [the defendant’s] defense.” K.S.A. 22-3301; accord Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (“[The t]est must be whether [the defendant] has sufficient present ability to consult with [the defendant’s] lawyer with a reasonable degree of rational understanding—and whether [the defendant] has a rational as well as factual understanding of the proceedings against [the defendant].”); see also State v. Foster, 290 Kan. 696, 703, 233 P.3d 265 (2010) (“A defendant is incompetent to stand trial when he or she cannot understand the nature or purpose of the proceedings or cannot make or assist in making his or her defense because of mental illness or defect.”).
K.S.A. 2011 Supp. 22-3302 outlines the procedure for determining competency:
“(1) At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of tire defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant." (Emphasis added.)
When a defendant is charged with a felony and the conditions requiring a hearing are met, a district judge must conduct the competency hearing, with or without a juiy within the judge’s discretion, and may order a psychiatric or psychological examination of the defendant. K.S.A. 2011 Supp. 22-3302(2)-(3).
Although this court has not previously articulated the distinction, defendants may raise both procedural and substantive competency claims. A procedural competency claim is based upon a trial court’s alleged failure to hold a competency hearing or the failure to hold an adequate competency hearing. A substantive competency claim alleges an individual was tried and convicted while, in fact, incompetent. McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001). Woods raises two procedural competency claims: (1) the inadequacy of the pretrial competency hearing; and (2) the district court’s failure sua sponte to hold a second competency hearing. He alsq makes a substantive competency claim, arguing he was in fact incompetent so the district court erred when it concluded otherwise.
Since Woods’ appeal is the first time he raises a competency claim, we might typically consider first whether Woods’ arguments were preserved. But the State is silent as to that question, so we will move on to the merits. See Foster, 290 Kan. at 702 (review warranted of district court’s failure to sua sponte reconsider competency during trial even though raised for first time on appeal).
Adequacy of the competency hearing
Woods asserts he was entitled to a “more thorough competency hearing” in which the court should have specifically questioned him about his intellectual disability and his capacity to assist in his defense, noting he was prohibiting trial counsel from raising a mental disease or defect defense. He also argues the district court was required to ask how Woods could assist his attorney if he refused to take medication for schizophrenia. He contends these failures amount to a procedural due process violation. We disagree.
In Medina, the United States Supreme Court held the standard required for satisfying due process is whether the procedure “affords the criminal defendant... a reasonable opportunity to demonstrate that he is not competent to stand trial.” 505 U.S. at 451. And although this court has not previously considered the type of procedural due process claim advanced by Woods—in which the defendant claims the competency hearing was inadequate—we have addressed whether our statute governing competency hearings is constitutionally adequate to protect a defendant’s procedural due process rights. See State v. Barnes, 263 Kan. 249, 262-63, 948 P.2d 627 (1997).
In Barnes, the court held the framework provided by K.S.A. 22-3302 gives “ample opportunity” to demonstrate incompetence. This holding was in response to an argument that the statute deprived criminal defendants of a meaningful competency hearing because it does not require appointment of a psychologist to undertake a psychological evaluation or require an adversarial hearing. 263 Kan. at 262. The Barnes court stated:
“[K.S.A. 22-3302] allows the defendant or his counsel to raise the issue and requires a hearing at which time the defendant is allowed to present evidence to establish his incompetence. The fact that the hearing may not afford the defendant the opportunity to cross-examine court-appointed physicians does not detract from his opportunity to demonstrate his incompetence. We conclude that K.S.A. 22-3302 provides a defendant with a procedure which is adequate to protect his right not to be tried while incompetent.” (Emphasis added.) 263 Kan. at 263.
In Woods’ case, the district court and the State initiated tine competency evaluation despite Woods’ protests against doing so. And after receiving an independent evaluation from COMCARE that concluded Woods was competent, the court held a competency hearing during which both sides had an opportunity to fully address the questions raised. Woods attended that hearing and informed the court he was familiar with the process and believed himself to be competent.
Woods argues the district court should have done more at the hearing to ascertain Woods’ competence to stand trial and question die COMCARE evaluation’s thoroughness. But those arguments go more to the next question, i.e., whether the district court correctly determined Woods was competent to stand trial, rather than a procedural due process burden, which is clearly not imposed by K.S.A. 2011 Supp. 22-3302. Accordingly, since the district court complied with the statutory process that was constitutionally sufficient under Barnes, we hold the district court’s procedure was adequate to satisfy due process.
Woods' competency to stand trial
When the district court initiates the competency issue, it is not a party and cannot be responsible for coming forward with the evidence of incompetence; but it can assign that burden to the State because both the court and the State have a duty to provide due process and a fair trial. The trial court measures the evidence presented by a preponderance of evidence standard. There is a presumption that the defendant is competent. State v. Hill, 290 Kan. 339, 367, 228 P.3d 1027 (2010) (citing State v. Cellier, 263 Kan. 54, 70, 948 P.2d 616 [1997]).
Appellate courts employ an abuse of discretion standard when reviewing a district court’s decision about a defendant’s competency to stand trial. Hill, 290 Kan. at 366; State v. Kleypas, 272 Kan. 894, 984, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overmled in part on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004); State v. Peckham, 255 Kan. 310, 325, 875 P.2d 257 (1994); State v. Perkins, 248 Kan. 760, 767, 811 P.2d 1142 (1991); State v. Soles, 224 Kan. 698, 700, 585 P.2d 1032 (1978). Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013).
Woods begins by challenging the COMCARE evaluator’s conclusion that Woods was competent, stating “it is unclear how the COMCARE evaluation found that an intellectually disabled schizophrenic with an IQ between 55 and 60, and who refuses to take his medication, was competent to stand trial.” But Woods is not per se incompetent just because he was previously diagnosed with schizophrenia. See State v. Harkness, 252 Kan. 510, 516, 847 P.2d 1191 (1993). Moreover, Woods’ argument slants the facts.
In the personal history summary, the COMCARE evaluator noted Woods previously had been diagnosed with schizophrenia but went on to conclude: “Woods did not present with psychotic symptoms.” (Emphasis added.) The evaluator also stated, “While [Woods’] conversation was erratic at times, it was likely not related to psychotic symptoms or mood disorder, but his effort to derail the process.” (Emphasis added.) And the evaluator did not indicate Woods needed to take medication or that the finding of competency was contingent upon Woods taking medication.
Woods also calls attention to what he characterizes as his “irrational decisions” that he argues demonstrate he was incompetent, namely his refusal to allow a mental disease or defect defense, not stipulating to his prior felony for the purposes of the criminal possession of a firearm charge, and his objection to a presentence evaluation regarding mental illness. But as the State correctly points out, the second and third events occurred after the .competency hearing, so they are irrelevant to the present inquiry of whether the court abused its discretion when it found Woods competent to stand trial.
As to Woods’ objection to presenting a mental disease or mental defect defense,- this is not necessarily evidence of incompetence because there are other plausible explanations for the behavior. See Harkness, 252 Kan. at 516 (attacking court reporter, showing confusion and difficulty making decisions, and twiddling thumbs not necessarily signs of incompetency because there were other plausible explanations for defendant’s actions). For instance, Woods’ comments suggest a number of different explanations for his objection, including that he found the discussion insulting and wanted the criminal matter resolved. And these explanations were known to the evaluator, who specifically noted Woods was “especially sensitive about [his mild mental retardation] diagnosis” and told the evaluator several times he was highly intelligent.
By the time of the competency hearing, the district court had observed Woods on several occasions and Woods was given an opportunity to explain why he objected to presenting a mental disease or defect defense. Woods’ attorney characterized him as competent to stand trial but also indicated she believed he was suffering from mental illness. The competency evaluation concluded Woods had no psychotic symptoms or mood disorder but might have been attempting to “derail the process.” In light of this, we hold the district court did not abuse its discretion by finding Woods competent to stand trial under a preponderance of the evidence standard.
Reevaluating Woods’ competency
Under K.S.A. 2011 Supp. 22-3302(1) a judge has a duty to sua sponte inquire into a defendant’s competency if the judge’s own knowledge and observation provide a reason to believe the defendant is incompetent to stand trial. The determination of necessity for such a sua sponte inquiry is within the trial court’s discretion. The party asserting the challenge bears the burden of demqnstrating it. Foster, 290 Kan. at 703.
Woods argues his behavior obligated the district court to revisit its competency ruling. As evidence of this, Woods points to his continued refusal to present a mental disease or defect defense, his refusal to stipulate to a prior felony conviction for the purposes of proving the criminal possession of a firearm charge, and his conduct during voir dire and trial. We again fail to see an abuse of trial court discretion.
During voir. dire, defense counsel informed the judge that Woods had yawned twice out loud. The court acknowledged it too had heard this. Counsel also indicated Woods used Kleenex in water to wash his face and neck and then stuck tom tissue scraps into his ears. During trial, Woods laughed loudly enough tire court reporter noted it during one witness’ testimony. The court later admonished Woods for doing so, as well as yawning loudly.
We fail to see how the district court abused its discretion by not ordering a reevaluation of Woods based on these incidents. They were isolated and could easily be attributed to an attempt to derail the judicial process—a possibility noted in the COMCARE evaluation. Woods’ actions, while unusual, did not rise to a level that demonstrates it was arbitrary, fanciful, or unreasonable for the district court to continue to rely on its previous competency determination. Woods was not speaking incoherently, responding to unseen stimuli, or otherwise behaving in a way that would suggest he had developed new symptoms requiring another evaluation. Cf. McGregor v. Gibson, 248 F.3d 946, 959 (10th Cir. 2001) (holding reasonable judge should have had a bona fide doubt about defendant’s competence when, among other things, defendant had temper tantrum because his shirt did not have a pocket, complained of mental or medical problems, asked questions demonstrating potential disorientation, and challenged prospective juror to “one on one” basketball game).
In addition, it is noteworthy defense counsel did not raise concerns about Woods’ competency after the initial hearing, even though the district court gave her an opportunity to make an additional record after Woods’ yawning and laughing during trial. See Drope v. Missouri, 420 U.S. 162, 178, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (“ ‘Although we do not, of course, suggest that courts must accept without question a lawyer’s representations concerning the competence of his client ... an expressed doubt in that regard by one with ‘tire closest contact with the defendant’ ... is unquestionably a factor which should be considered.’ ”). Instead, Woods’ attorney stated that she had informed him it was inappro priate to laugh. There is also some evidence in the record of collaboration between defense counsel and Woods because she withheld her consent to admission of the State’s exhibits until she shared them with her client.
We hold the trial court did not abuse its discretion by failing to sua sponte engage in another competency determination after its earlier conclusion that Woods was competent to stand trial.
Woods’ Interview with Investigators
Before trial, Woods sought to suppress statements he made to the arresting officer, as well as statements made during a videotaped police interview. The district court held both were admissible. On appeal, Woods challenges only the statements made during the recorded interview with investigators, so that focuses our analysis. We conclude this challenge is without merit.
Additional facts
Following his arrest at the scene, Woods was taken to an interview room at the Wichita police station. He remained in that room from shortly after noon until 6 p.m., but the actual interview did not begin until ai'ound 3:20 p.m. and lasted about 90 minutes. Woods was handcuffed to a table during this entire time but was frequently released to go to the restroom and was provided with coffee and water on request.
The interviewing detective began by inquiring about Woods’ personal history. Woods asked if he could “call my attorney.” The detective responded, “You are welcome to an attorney if that is what you wish to do.” Woods replied, “Well, yeah, I’m still trying to speak with you too because ... I have to set up stuff for my wife with you because I’m her husband:” The detective then explained that if Woods wanted an attorney the detective was going to leave and let Woods talk to one. Woods then asked to call his mother. The detective said no calls to his mother would be allowed at that time but that Woods would get a phone call later.
The detective then asked whether Woods wanted to exercise his right to an attorney. Woods said, “But you not going to give me no information unless I cooperate with you, right?” The detective re sponded that he was not there to tell Woods what he knew but was there to get Woods’ side of the story. The detective again tried to clarify Woods’ desire for an attorney, and Woods repeated that he wanted to figure out what happened to his wife. Woods then affirmatively stated, “Don’t worry about the lawyer.” Responding to this, the detective asked whether Woods wanted an attorney and Woods answered, “No.” The detective then repeated the question, and Woods again indicated he did not want an attorney. Woods said he would talk to the detective in the hope the detective would talk to him.
The detective then resumed gathering Woods’ personal information. Woods said he was a high school graduate, gave his address, and responded to dozens of other background questions before tire detective presented to him the Miranda waiver form. At that time, both read the form’s provisions out loud and Woods initialed on the form the specific rights he agreed to waive. Woods again said he wanted to continue talking with the detective and signed the form.
Later in tire recorded interview, Woods admitted he shot his wife at least twice. He believed he missed the first time and shot her in the head the second time while she was on the ground. He told the detective the killing was not premeditated and that he was not “plotting it.” Woods said he decided to shoot his wife when she was standing in their yard yelling and cussing. He also said he “wasn’t intending to kill nobody, but you never know with a gun. Guns kill people.”
Woods gave a couple explanations for the shooting. He said he felt threatened because his wife was “calling . . . other people . . . to tell them to put their hands on me.” When asked whether she threatened him with a weapon, he reiterated that “she threaten me with people.” He also said he “just got fed up with the situation and . . . took it into my own hands.” He said, “I felt the need. It was necessary.” Woods explained his wife was behaving disrespectfully by taking property from their home, being secretive about where the kids were, and stealing his property.
In his motion to suppress, Woods argued that his statements during the interview were “obtained without a full, knowing, and intelligent waiver of rights under Miranda.” The motion to suppress contended
“[t]hat due to the physical, mental, educational, and emotional state of [Woods], he was unable to appreciate the full meaning of his rights under Miranda, and any waiver of relinquishment of such rights was not made by [Woods] voluntarily, knowingly, or intelligently, as required under Jackson v. Denno, 378 US 368 (1964).”
At the suppression hearing, Woods made a more specific argument that his statements were involuntary because he was unable to communicate with the outside world, citing the detective’s statement that Woods could not make a phone call. He also noted he was in the interview room for 6 hours. He argued he had requested an attorney and only agreed to talk because he wanted information on his wife and lads. He again claimed those factors demonstrated his waiver of his rights was not knowing and voluntary. He did not specifically argue, as he does now on appeal, that “an intellectual disability and a serious, untreated mental illness prevented [him] from knowingly and voluntarily waiving his privilege against self-incrimination.”
The district court denied the motion to suppress. It noted the actual interview lasted only about 90 minutes, Woods was in his late twenties, and he told police he had a high school diploma. The court also observed Woods had a significant criminal history and had previously invoked his right to silence on another occasion. The court found Woods understood the detective’s questions and responded appropriately. It also described the interview process as “veiy fair” without any signs of coercion, threats, or intimidation. Regarding Woods’ initial inquiry about an attorney, the district court held it was a back and forth discussion without coercion and that Woods freely concluded that he wanted to talk to the detective. Based on those findings, the district court held Woods’ confession was the product of his free and independent will and was admissible.
At trial, Woods renewed his objection to the statements made during the taped interview “pursuant to pretrial motions.” That objection was overruled based on the court’s prior rulings. A continuing objection was made and noted.
Standard of review
The district court’s decision on Woods’ motion to suppress is subject to a dual standard of review. The factual findings are reviewed for substantial competent evidence, while the legal conclusion drawn from those facts is reviewed de novo. If there are no disputed material facts, the issue is a question of law over which the appellate court has unlimited review. State v. Carlton, 297 Kan. 642, 645-46, 304 P.3d 323 (2013).
Discussion
This court considers a nonexclusive list of factors when determining if a confession is voluntary under the totality of the circumstances, including: (1) the defendant’s mental condition; (2) the manner and duration of the interrogation; (3) the defendant’s ability to communicate with the outside world; (4) the defendant’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the defendant’s proficiency with the English language. State v. Harris, 293 Kan. 798, 807-08, 269 P.3d 820 (2012). “Any one factor or a combination of factors “may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act.” [Citations omitted.]’ ” State v. Betancourt, 301 Kan. 282, 290, 342 P.3d 916 (2015).
Woods focuses on his mental condition and intellect. And in a related argument, Woods appears to claim that he wrongly believed he had to speak with police to get information about his wife and lads. But Woods again overstates the facts regarding his mental illness. The COMCARE competency evaluation noted Woods had been previously diagnosed with schizophrenia but concluded he was not psychotic when the evaluation was made. This evaluation, of course, occurred after the police interview; but the unredacted video, which the district court reviewed prior to ruling on the suppression motion, supports the conclusion that Woods easily understood the questions posed and answered appropriately. In short, there is no evidence Woods’ responses were unknowing or involuntary because he was suffering from schizophrenia.
Regarding Woods’ intelligence, there is conflicting evidence whether Woods completed high school. He told the detective he had graduated from high school, but the competency evaluation reported he had dropped out of school when he was 15 years old. The evaluation indicates Woods’ IQ fell in the mild mental retardation range, and it is apparent from tire video that Woods wanted to speak with detectives because he was hoping to learn something about his wife and kids. In this regard, he made several statements indicating he wanted information both before and after the interviewing detective explicitly told him the interview’s purpose was to get Woods’ story, not to provide Woods with information. Woods appeared to continue harboring this belief even after the detective explicitly disavowed it.
But even if we assume Woods’ low intelligence caused him to believe he was required to speak with the detective to learn about his wife’s condition, this would be insufficient to render the confession involuntary without more. See State v. Randolph, 297 Kan. 320, 330, 301 P.3d 300 (2013) (“[I]t is well established that low intelligence alone does not preclude a finding that an accused knowingly and voluntarily waived his or her Miranda rights.”). Woods must show he was coerced into confession. See Colorado v. Connelly, 479 U.S. 157, 163-65, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (low intellect not basis for finding statement involuntary if no coercion). And here there is no evidence of coercion or inducement. In fact, the detective explicitly told Woods the officers were not there to give information.
We hold that under the totality of the circumstances, the district court did not err by determining the confession was voluntary..
Finally, we must dispose of a passing remark in Woods’ brief in which it might appear Woods shifts to an argument that he invoked his right to an attorney. He fleetingly contends his “references to a lawyer’ should have been sufficient to conclude that he was invoicing his right to an attorney.” But there is nothing further said about there being an actual invocation of Woods’ constitutional right to attorney or an error by law enforcement in not honoring this reference as a clear and unambiguous invocation of this right. See Davis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (right to counsel); Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (if the suspect invokes Miranda during questioning, the interrogation must end); State v. Cline, 295 Kan. 104, 113, 283 P.3d 194 (2012) (suspect’s invocation must be unambiguous, such that a reasonable police officer under the circumstances would understand the statement as an assertion of a Miranda right). And at oral argument, Woods’ appellate counsel made clear there was no issue on appeal that Woods had made a clear and unambiguous invocation of his right to remain silent. Therefore, this passing remark has no place in our analysis as a claim of error.
Limiting Voir Dire Examination
Woods argues next that the district court abused its discretion by prohibiting him from asking prospective jurors during voir dire whether they “have a history of mental illness, either individually, or someone close to them.” Defense counsel argued this question was relevant, even though Woods was not raising a mental disease or defect defense, because Woods told the interviewing officers he was on disability and indicated the detective would have to speak with his psychiatrist to learn why. The court held defense counsel’s proposed question was irrelevant because Woods was not raising a mental disease or defect defense. We hold that the district court acted within its discretion.
At trial, and over the State’s objection, the district court allowed the jury to learn that Woods had told the interviewing detective he was on disability. But Woods’ reference to a psychiatrist was never admitted into evidence. The district court indicated the State could introduce Woods’ testimony that he was on disability, or it would allow defense counsel to address it on cross-examination. The prosecutor opted to introduce it on direct examination during the following colloquy:
“Q. [The prosecutor]: Now, you’ve indicated that you received some personal history from Mr. Woods during the course of your interview with him. You indicated that he gave you his height, weight, that kind of general description, and you indicated that in advising him of his Miranda rights, you asked him some other questions. Did you ask him regarding whether or not he’d had any mental issues in terms of just getting a personal history? •.
“A. [Detective]: Yes.
“Q. And what did he tell you?
“A. He said he was getting disability for disability services.”
On appeal, Woods argues his voir dire was improperly restricted because “Woods was behaving like a schizophrenic who refused to take his medication.” Woods cites his behavior during voir dire in which he wiped his face and placed tissue scraps in his ears. Woods also cites the detective’s testimony that Woods was receiving disability.
K.S.A. 22-3408(3) governs voir dire, stating:
“The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose.” (Emphasis added.)
This court has recited tire following principles and standard of review for challenges to the scope of voir dire:
“ ‘The “purpose of voir dire examination is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality.” [Citation omitted.] Generally the nature and scope of the voir dire examination is entrusted to the sound discretion of the trial court. [Citation omitted.] However, “ ‘[i]n determining whedier the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances.’ ” ’ ” State v. Reyna, 290 Kan. 666, 686, 234 P.3d 761 (2010).
The issue is whether defense counsel’s question was irrelevant, i.e., served no useful purpose, because mental illness was not an issue in Woods’ case. The State rightly points out that die question framed by defense counsel could have been phrased in a less intrusive way. But even if the inquiry is viewed more broadly as a mechanism to unearth potential bias against people who suffer from mental illness, Woods cites no authority that the question was relevant. Woods simply states: “The defense needed to ensure that the jury would be fair and unbiased . ... towards a person with mental illness.” But this misses the relevance question since Woods was not presenting a defense that he suffered from mental disease or defect.
No Kansas case is directly on point, although State v. Simmons, 292 Kan. 406, 254 P.3d 97 (2011), provides support for concluding the district court properly limited Woods’ inquiry. Simmons involves a prosecutorial misconduct claim, but it is relevant for these purposes because the court concluded the prosecutor s discussion during voir dire of the Stockholm Syndrome was error because it was irrelevant.
In that case, the prosecutor asked potential jurors numerous questions about the Stockholm Syndrome, which concerns a hostage’s attitude toward captors, and went so far as to urge jurors to view some of the trial evidence “in light of the Stockholm Syndrome.” 292 Kan. at 410. On appeal, the defendant argued this inquiry was misconduct because it was irrelevant to discovering juror prejudice or bias since the State did not present any evidence about the syndrome or that the victim suffered from it. The Simmons court agreed because tire prosecutor referred to facts that were never in evidence—a prohibition this court noted was applicable to all lawyers. 292 Kan. at 411; see also Rule 3.4(e) of the Kansas Rules of Professional Conduct (“A lawyer shall not. . . [e] in trial, allude to any matter . . . that will not be supported by admissible evidence.”) (2014 Kan. Ct. R. Annot. 620).
Similarly, the fact that Woods was previously diagnosed with schizophrenia and had received treatment was never in evidence. And the testimony about Woods receiving disability payments, which was admitted over the State’s objection, was not enough to open the door because nothing was said specifically about why those payments were received. The district court did not abuse its discretion by refusing to allow the question because it was irrelevant.
Sufficiency of the Evidence of First-Degree Murder
To convict Woods of premeditated first-degree murder, the State had to prove he killed his wife intentionally and with premeditation. K.S.A. 2011 Supp. 21-5402(a). Woods argues the State failed to present sufficient evidence of premeditation for a jury to reasonably convict him of first-degree murder. We disagree.
Additional facts
The evidence at trial showed that about a month and a half before the shooting Woods-Cratic decided to leave Woods and she had moved furniture and possessions into Jerry Johnson’s home. Johnson was the father of Woods-Cratic’s other children. She continued living with Woods, however.
At around 11:30 a.m. on the day of the shooting, Johnson dropped a child off at Woods’ house so Woods-Cratic could take her to a basketball game. Johnson testified Woods-Cratic called him at 11:50 a.m. to tell him she could not go because she and Woods were arguing. Woods-Cratic called back shortly thereafter to see if Johnson had made arrangements for the child and told Johnson that Woods was '‘trippin.”
Shortly before noon, Quantinia Malian Perry saw Woods-Cratic and Woods in front of their house. Woods-Cratic was on her cell phone asking someone to come get the car. Perry described Woods as “butting in” to Woods-Cratic’s conversation. She described Woods-Cratic as mad and Woods as calm. Sometime after 12:15 p.m., Perry heard two bangs and saw Woods-Cratic fall in the middle of the street. Woods was standing between the curb and sidewalk, walking like he was going to go back in the house. Perry said Woods turned around and shot Woods-Cratic three more times in her neck. She described this as taking about 3 minutes, but then she said she was not sure how long it took.
Galashia Davis and Rose Trussell were at a nearby garage sale. Davis heard what she thought were firecrackers and saw Woods-Cratic running into the street and then falling down. Woods walked up to her feet, pointed the gun at her head, and pulled the trigger. Davis described Woods as having “tunnel vision.” Afterwards, Woods stood in the yard talking on the phone. Davis described the shooting as a matter of seconds between pops or gunshots. Davis also testified that there were three children present, who were running next to Woods screaming and pulling on him while he walked up to Woods-Cratic and took the final shot. She said the children had absolutely no effect on him. It was as if he didn’t hear them.
Trussell testified that she heard “pow pow” and saw Woods-Cratic close to the street. She heard another “pow pow” and watched Woods-Cratic run away. Woods-Cratic was telling Woods “you don’t have to do this.” She heard another “pow pow” and saw Woods-Cratic fall in the street. Woods then ran up to Woods-Cratic and fired point blank. Trussell described the shooting as happening quickly with three sets of “pows.” She testified the last shot was fired at close range while Woods had his gun pointed at Woods-Cratic’s forehead. Afterwards, Woods stood in his yard talking on a phone.
Asia Cannon-Witherspoon was nearby at the Family Dollar parking lot. She heard a gunshot and saw Woods walking towards Woods-Cratic. Woods shot Woods-Cratic, and she fell in the street. Woods stood over her while she lay in tire street and shot her again in the upper part of her body. Cannon-Witherspoon described the shooting as happening really quickly. Afterwards, Woods was walking around, and she heard him tell someone that he shot his wife.
Sophia Thomas was inside the home directly across the street. She did not hear anything before the shooting but testified she heard three gunshots and children crying. The shots were not right after each other. She heard one shot, and then a little bit of time passed before the next two shots, which were close together. Thomas went outside and saw Woods standing over Woods-Cratic. She testified, “All he could say was that’s his wife, you know, like that made it right or something.”
A Wichita police officer arrived within 1 minute of receiving a call from dispatch about the shooting. He saw Woods-Cratic lying in the street and several people standing around. He also saw Woods standing in his front yard staring at her body. Woods ran towards the Family Dollar. The officer ordered him to drop his weapon, and Woods complied. Woods was placed under arrest.
While the officer was putting Woods in a patrol vehicle, Woods heard the police radio traffic. The officer testified Woods said “her name is Ms. Woods. I just shot my wife,” and, “I don’t have anything. I just shot my wife.” Woods also told the officer to get him out of there because people were going to kill him. When Woods overheard another officer’s question about where the shooting started, he spontaneously responded that the shooting started at his address. The officer described Woods as “very matter of fact,” not angry or panicked.
Standard of review
“When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate 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 witness credibility determinations.” State v. Lloyd, 299 Kan. 620, 632, 325 P.3d 1122 (2014).
Discussion
The jury was properly instructed that premeditation means:
“[T]o have thought the matter over beforehand, in other words, to have formed the design or intent to Ml before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more titan the instantaneous, intentional act of taking another’s life.” PIK Crim. 3d 56.04(b).
This court has held that premeditation indicates a time of reflection or deliberation. It does not necessarily mean an act is planned, contrived, or schemed beforehand. The following factors can be considered when determining whether the evidence supports an inference of premeditation: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) any threats or declarations of the defendant before or during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The analysis is not driven by the number of facts supporting a finding of premeditation because sometimes one factor may be compelling evidence of premeditation. Lloyd, 299 Kan. at 633.
Woods argues application of these factors supports his argument that there was insufficient evidence of premeditation. He contends the State did not show Woods threatened Woods-Cratic; “the events leading up to the shooting occurred in a quick period of time”; Woods shot Woods-Cratic in front of many witnesses; and his behavior after the shooting does not suggest premeditation because he watched her body until he was arrested, admitted to witnesses that he shot his wife, and did not deny his guilt.
The State counters that Woods misapplies the standard of review by citing evidence he believes conflicts with the verdict instead of considering the evidence which supports it. The State argues there is sufficient evidence for a rational factfinder to conclude Woods premeditated the killing because he fired a gun multiple times at close range-—with the final fatal shot occurring while the victim was lying defenseless on the ground. The State’s argument has merit.
Woods-Cratic was shot three times with the only immediately fatal shot being the one to her head. The evidence is undisputed that Woods fired that shot last. Perry, Davis, Trussell, and Cannon-Witherspoon all testified to the following sequence of events: Woods began shooting; Woods-Cratic ran into the street and fell; then Woods walked up and shot her in the head at close range. And this series of events was confirmed by Woods’ statement during the videotaped police interview, which was played for the jury, that he shot Woods-Cratic in the head while she was on the ground. And Woods said he had decided to shoot her “when she was in the yard yelling and cussing.”
Most witnesses described the shooting as happening quickly but still indicated there was sufficient time to form premeditation during the time Woods stepped off the curb, approached Woods-Cratic, and fired the fatal shot at her head. While there is additional evidence supporting the jury’s finding of premeditation, the fifth factor—dealing a lethal blow after the victim was felled and rendered helpless—is adequate by itself to uphold the jury’s verdict under the facts in this case.
Lesser Included Offense Instructions
Woods argues next that the evidence supported an instruction on voluntary manslaughter under a sudden quarrel or heat of passion theory, as a lesser included offense of first-degree murder. We disagree.
The framework for analyzing jury instruction issues was established 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, tire court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to die defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).”
Woods preserved this issue by requesting the instruction during the juiy instructions conference. See K.S.A. 2011 Supp. 22-3414(3) (defendant must distinctly state an objection to the omission before the jury retires to consider its verdict). And this instruction is legally appropriate because voluntary manslaughter is a lesser included offense of first-degree murder. State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014). The only issue is whether the instruction was factually appropriate.
A defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence from which a rational factfinder could find for the defendant on that theoiy. An appellate court views the evidence that would support that instruction in a light most favorable to the defendant. 300 Kan. at 710. But the court will not speculate about hypothetical scenarios. “ ‘For a lesser included offense to be factually appropriate, there must be actual evidence in the record, together with reasonable inferences to be drawn from that actual evidence, that would reasonably support a conviction for the lesser included crime/ ” 300 Kan. at 710 (quoting State v. Wade, 295 Kan. 916, 926, 287 P.3d 237 [2012]).
An intentional killing and legally sufficient provocation are the key elements of voluntary manslaughter under K.S.A. 2011 Supp. 21-5404(a). State v. Hayes, 299 Kan. 861,864,327 P.3d 414 (2014). An objective test is used to review whether the provocation is legally sufficient. 299 Kan. at 418. “Heat of passion” is “any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resent ment, fright, or terror,” based “on impulse without reflection.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). But the provocation “must be sufficient to cause an ordinary man to lose control of his actions and his reason.” 236 Kan. at 796.
Woods first argues the district court improperly analyzed his request because it weighed the evidence supporting the instruction against opposing evidence. But he cites the district court’s initial comments before it solicited argument from counsel and omits reference to the district court’s actual ruling, which the court made after recessing to review several cases cited by the State.
In its consideration of Woods’ request for a voluntary manslaughter instruction, the district court began by reciting evidence it believed “weighted] against that instruction.” This was principally subjective evidence of Woods’ actions and comments both before and after the shooting. The court then recited “factors weighing for giving” the voluntary manslaughter instruction, which included evidence of an argument between Woods and his wife about property and the kids. But after hearing argument from counsel, the court recessed to review several cases the State presented on provocation.
When the proceedings resumed, the court recited the correct objective standard for reviewing provocation and noted the provocation must be severe or “calculated to deprive a reasonable person of self-control.” It then concluded the evidence showed Woods was obviously upset but found there was nothing qualifying as a sufficient provocation, such as an assault, weapons, or physical threats what would cause a reasonable person to kill Woods-Cratic. In short, the district court applied the correct standard when determining Woods was not entitled to a voluntary manslaughter instruction.
Woods’ remaining argument is that the district court erred in finding evidence of provocation lacking. He notes the following evidence supported a voluntary manslaughter instruction: Woods and his wife were arguing on the front lawn before the shooting; his wife was leaving Woods and moving in with another man; Woods’ family was breaking up on his second wedding anniversary; Woods’ wife said Woods was “trippin”; one witness testified Woods was “butting in” to his wife’s phone conversation; and Woods “does not appear to hear the children’s cries not to harm [Woods-Cratic].”
But this last assertion regarding the children’s cries does not demonstrate an objective basis for finding Woods acted in the heat of passion. It speaks to Woods’ emotional state of mind. See Story, 300 Kan. at 711 (defendant’s emotional state of mind does not demonstrate objective basis for instruction on heat of passion). And tire remaining evidence, which at best amounts to a verbal confrontation, is insufficient to warrant a voluntary manslaughter instruction because it is not enough to cause an ordinary person to lose control of his or her actions.
Viewing tire evidence in a light most favorable to Woods, it demonstrates only that the couple were arguing and drat Woods-Cratic was removing property from their home—as she had done 3 weeks prior to tire killing. The district court correcdy held there was no evidence of physical assault or a weapon, We hold that the voluntary manslaughter instruction was not warranted because there was no objective evidence of a provocation sufficient to support issuing that instruction.
Cumulative Error
Since we hold there was no error, a cumulative error analysis is not appropriate. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009) (cumulative error doctrine does not apply if no error or only one error supports reversal).
Woods’ Registration as a Violent Offender
During sentencing, the district court ordered Woods to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. In doing so, it did not pinpoint the particular statutory subsection it was relying upon; but the court stated, “I will order registration as a violent offender based on Count 1, murder in the first degree, obviously a person felony committed with a firearm.” (Emphasis added.) The sentencing journal entry indicates Woods is required to register as a violent offender because he was convicted of first-degree murder.
The sentencing judge also had Woods sign a document entitled “Notice of Duty to Register.” The district court explained to Woods that he would be required to register under KORA “if you ever do get out of the prison system” and explained the registration requirement would be different from parole. The form is not included in our appellate record, but it appears to be a mechanism for fulfilling the sentencing court’s duty to “[ijnform any offender, on the record, of the procedure to register and the requirements of K.S.A. 22-4905, and amendments thereto” under K.S.A. 2011 Supp. 22-4904(a)(l).
On appeal, Woods challenges the KORA registration requirement on two grounds. First, he argues the registration order was a punishment imposed after an unconstitutional judicial factual finding that he used a deadly weapon in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Second, Woods argues the form he signed was a void and unenforceable contract given his “severe intellectual disability and mental illness.”
As to the first issue, we need not decide whether KORA factual findings violate Apprendi. Under K.S.A. 2011 Supp. 22-4906(a)(1)(F), all defendants convicted of first-degree murder must register. That statutory subsection does not require a district court finding that the crime occurred with a deadly weapon. And although the district court’s reference to a firearm suggests it was imposing registration under K.S.A. 2011 Supp. 22-4906(a)(1)(L) (“conviction of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony”), the district court was obligated nonetheless to impose a registration requirement based on the conviction itself. See K.S.A. 2011 Supp. 22-4906(a)(1)(F).
As to Woods’ argument that the notice is a void contract, this contention is without merit. The notice itself was not included in the appellate record, which makes it impossible to examine its provisions; but even so, the district court’s comments make clear the notice was simply a form it used to notify Woods that he will be obligated to register as a violent offender if he is ever released from prison as required by K.S.A. 2011 Supp. 22-4904(a)(l).
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Hill, J.:
In this era, when all cities and towns thirst for revenue to provide basic governmental services, we must decide if a transportation user fee, enacted by the City of Mission, is a tax, and if so, decide if it is an excise tax not permitted by the Kansas Legislature. We offer our perspective on the two issues that arise in this litigation.
Is this a tax?
Annually, Mission, Kansas collects a transportation user fee on all improved real estate, using it for public street maintenance. If an owner fails to pay, the city imposes late fees, interest, and attaches a lien on the real estate. Under Kansas law, a tax is a forced contribution to raise revenues for the maintenance of governmental services offered to the general public. Because this fee is a forced payment by all improved landowners which is used for the governmental service of providing for public streets and bridges, used by all, we hold Mission’s transportation user fee is a tax.
Is this an excise tax barred by lawP
The Kansas Legislature has prohibited cities from imposing all excise taxes with five exceptions. The term excise tax has come to mean and include practically any tax which is not an ad valorem tax imposed on the value of the article or thing taxed. The parties to this lawsuit agree that the fee here is not based on the value of the article or tiling taxed and none of the five exceptions to the statutory ban on excise taxes apply to this case. Therefore, we hold that Mission’s transportation user fee is a prohibited excise tax.
The case history provides the context for our decision.
Because the City Council decided that it lacked sufficient general fund revenues needed for the adequate maintenance of city streets, die City of Mission, in 2010, created a transportation user fee in Ordinance No. 1332 to raise revenue for its transportation fund. The ordinance is found in Chapter 145 of Mission’s municipal code. The City uses the money from the fund for various transportation system needs such as surfacing and resurfacing of streets, curb and gutter repair, bridge repair, trail maintenance, and bicycle lane repair and maintenance.
The City imposed the fee on the owners of all developed property within the City. The council based the fee on what it calls the direct and indirect use of the City’s transportation system. The fee exacts payment for what the City perceives to be the benefits that developed properties derive from the use of public streets, bicycle lanes, and sidewalks. According to the fee’s administration manual, the fee is calculated by estimating the average number of vehicle trips each property within the City generates and then assessing a fee based on the trip intensity—that is, die type and size of the use. In other words, the more trips generated by a certain property, the higher the fee assessment. Only real property exempt from all property or ad valorem taxes under K.S.A. 79-201, such as churches, are exempt from paying the fee. Heartland Apartment Association, Inc., the Building Owners Association, and others, cannot opt out of this fee.
The City looks at three factors to determine how much to tax.
To calculate the amount owed to the City, the City Administrator looks at three factors:
(1) the use of the developed property, including the amount of traffic generated by the property;
(2) for nonresidential uses, the developed square footage of the property; and
(3) a traffic generation factor for each use categoiy of the developed property.
After determining the use categoiy for the property, the Administrator uses a trip generation manual published by the Institute of Transportation Administrators to determine the corresponding vehicle trip generation figures. The Administrator then estimates the number of trips annually related to the property. After that, the Administrator assigns this estimate of annual trips to a customer group. There are three groups: (1) single-family resident; (2) multifamily resident; or (3) nonresidential use.
The fee is then billed to each landowner and collected with the annual Johnson County ad valorem property taxes. Under the enactment, the City can charge late fees for unpaid amounts and place a lien on the real estate for any unpaid amounts. In 2010 and 2011, the various plaintiffs paid their yearly fee assessments in amounts ranging from a flat fee of $72 for single-family homes to $16,159.87 for commercial property.
Two landowner associations and others take legal action against the fee.
Heartland Apartment Association, Inc., a nonprofit association whose members own or operate multi-family retail housing in Kansas, the Building Owners and Managers Association of Metropolitan Kansas City, a nonprofit association of commercial building owners and managers, and some individuals, filed a lawsuit challenging the legality of the City’s transportation utility fee. They brought their suit in five counts: declaratory judgment, injunction, recovery of amounts paid, due process, and equal protection. The district court decided the matter on motions for summary judgment.
The court entered judgment in favor of the City on all five counts. Basically, it concluded that while the transportation user fee is a tax that was lawfully adopted through an ordinary ordinance under the City’s powers of home rule found in Article 12, § 5 of the Kansas Constitution, it is not an excise tax prohibited under K.S.A. 12-194.
Heartland appeals, contending the fee is an illegal excise tax. The City cross-appeals the district court’s ruling that the fee is a tax. The City maintains it is just a fee. The parties agree that there are no material facts in dispute for resolution of this issue.
When there is no factual dispute, such as this case, our review of an order regarding summary judgment is de novo. David v. Hett, 293 Kan. 679, 682, 270 P.3d 1102 (2011). And because the dis-positive questions for this issue are purely legal—involving the relationship between the Kansas Constitution, Kan. Const, art. 12, § 5(b), a statute, K.S.A. 12-194, and Mission City Ordinance No. 1332—our review is unlimited. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
Logic compels us to look first to see if this enactment is a tax as the district court held. For if it is not, then it cannot be an illegal excise tax since it is not a tax, but a fee. If we agree with the court that it is a tax, we will then move on to the question of whether it is an excise tax—a tax the legislature has prohibited cities in Kansas from enacting.
Cases from other jurisdictions.
When the district court decided this fee was a tax, it considered cases from Washington, Florida, Idaho, and Colorado that have examined similar schemes in those states. Covell v. City of Seattle, 127 Wash. 2d 874, 879, 905 P.2d 324 (1995), State v. City of Port Orange, 650 So. 2d 1, 3 (Fla. 1994), and Brewster v. City of Pocatello, 115 Idaho 502, 504, 768 P.2d 765 (1988), held the fees to be illegal taxes. But Bloom v. City of Fort Collins, 784 P.2d 304, 307 (Colo. 1989), upheld the ordinance as a valid fee.
In Coveil, Seattle passed an ordinance charging a fixed monthly street utility charge for single-family residences and multiple-family residences, to be included on the annual property tax assess ment. In Washington, municipalities must have either express constitutional or legislative authority to levy taxes. King County v. City of Algona, 101 Wash. 2d 789, 791, 681 P.2d 1281 (1984). The Washington Supreme Court in Covell addressed the question whether the residential street utility charge was a regulatory fee or an unconstitutional ad valorem tax. 127 Wash. 2d at 877-78. In deciding whether a charge is a tax or regulatory fee, Washington courts examine, inter alia, whether the primary purpose is to raise revenue or to regulate. To paraphrase, if the primary purpose of the charges are to raise revenues and not to regulate, then the charges are a tax. See 127 Wash. 2d at 879.
The Washington Supreme Court held that the street utility charge was an unconstitutional tax. 127 Wash. 2d at 891. The court determined that the thrust of the ordinance was clearly to raise funding for the nonregulatory function of repairing streets for the public’s benefit, including those nonresidents who use Seattle’s streets without paying the charge, which it accomplished by transferring part of the responsibility for maintaining and constructing city streets to a limited segment of the population. The court also found that the street utility charge was not a fee because it did not attempt to regulate residential housing or the use of city streets, and there was only a tangential relationship at most between the charge and the benefits received by those that pay. 127 Wash. 2d at 881-90.
In Port Orange, the Supreme Court of Florida determined whether a transportation utility fee enacted on property owners to finance bonds for the support of the operation, maintenance, and improvement of the local roads was a fee or a tax. 650 So. 2d at 2. The ordinance required Port Orange to estimate the amount of usage of the local roads by the owners and occupiers of developed properties through actual traffic counts and the use of a “Trip Generation Manual” developed by the Institute of Traffic Engineers. Port Orange then allocated costs in proportion to the number of trips generated by each user for each class of road. 650 So. 2d at 2. In Florida, “Because a tax must be authorized by general law ... if the transportation utility fee is a tax, even broad home rule powers granted to municipalities do not authorize it.” 650 So. 2d at 3.
The Supreme Court of Florida first clarified the definition of a tax as “an enforced burden imposed by sovereign right for the support of the government, the administration of law, and the exercise of various functions the sovereign is called on to perform.” Port Orange, 650 So. 2d at 3. To contrast fees, the court cited National Cable Television Assn. v. United States, 415 U.S. 336, 341, 94 S. Ct. 1146, 39 L. Ed. 2d 370 (1974). The court noted that fees have common traits that distinguish them from taxes by who benefits from the public services, if they are voluntary, and who pays:
“[Fees] are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society [citation omitted]; and they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.” Port Orange, 650 So. 2d at 3.
The Supreme Court of Florida held that the ordinance Port Orange enacted was a tax because funding for the maintenance and improvement of a municipal road system is revenue used for tire exercise of a sovereign function, and, unlike a valid user fee, a transportation utility fee “is a mandatory charge imposed upon those whose only choice is owning developed property within the boundaries of the municipality.” Port Orange, 650 So. 2d at 4. The court characterized the transportation utility fee as converting the local roads and the municipality “into a toll road system” in which only the owners of developed property within the city are required to pay the tolls. 650 So. 2d at 4.
In Pocatello, the city imposed a “street restoration and maintenance fee” upon all owners and occupants of real property to pay for street maintenance. The amount owing by each owner or occupant was based upon the traffic generated by that owner s or occupant’s property. The question before the Idaho court was whether, in the absence of legislative authority or voter approval, Pocatello could “impose a fee on the owners or occupants of property which abut public streets and which streets are open to public passage by the public in general.” 115 Idaho at 503.
The Supreme Court of Idaho held that the fee imposed by Po-catello was in reality the imposition of a tax designed as a revenue raising measure, requiring the support of the electorate. Specifically, the court held the fee raised revenue and did not regulate any governmental service:
“[I]t is clear that the revenue to be collected from Pocatello’s street fee has no necessary relationship to the regulation of travel over its streets, but rather is to generate funds for the non-regulatory function of repairing and maintaining streets. The maintenance and repair of streets is a non-regulatory function as the terms apply to tire facts of the instant case. We view the essence of the charge at issue here as imposed on occupants or owners of property for the privilege of having a public street abut their property. In that respect it is not dissimilar from a tax imposed for the privilege of owning property within the municipal limits of Pocatello. The privilege of having the usage of city streets which abuts one’s property, is in no respect different from the privilege shared by the general public in the usage of public streets.” Pocatello, 115 Idaho at 504.
Finally, in Bloom, a divided Colorado Supreme Court, relying on Colorado cases, held that an ordinance imposing a transportation utility fee on the owners or occupiers of developed lots or parcels of land fronting city streets was not a tax, but rather a valid special fee assessed to defray maintenance costs of city streets or the cost of a particular service provided to those assessed. 784 P.2d at 311. In doing so, the court clarified the distinction between a tax and a special fee by stating: “Unlike a tax, a special fee is not designed to raise reveimes to defray the general expenses of government, but rather is a charge imposed upon persons or property for the purpose of defraying the cost of a particular governmental service.” 784 P.2d at 308. The court also stated that “the transportation utility fee is not conditioned on the voluntaiy choice of owners or occupants qf developed lpts, We have never held . . . that a service fee must he voluntary.” 784 P.2d at 310. A footnote further clarified that since Fort Collins had the authority in its legislative capacity to enact a special fee, “we decline to engraft a Voluntariness’ factor onto tire tax-fee distinction in resolving this case.” 784 P.2d at 311 n.8. Two justices dissented, finding that the ordinance was an invpluntary tax. 784 P.2d at 312-14.
While the authorities from other jurisdictions, cited by both sides, are interesting because they deal with similar revenue col lection schemes, also called transportation user fees, we find that they shed litde light on this dispute. Each state is different and their systems of taxation are unique, especially in regard to the power a city has to tax. We must focus on Kansas law.
Despite its name, this fee is a tax.
We have been taught by the Supreme Court that the distinction between a fee and a tax does not depend upon its label, but rather on the nature and function of tire charge. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, Syl. ¶ 7, 845 P.2d 57 (1993). In other words, even though a city may call the enactment a fee, it could still be a tax. Instead, we must look at the real effects of this ordinance.
• Who has to pay it?
• Does the city intend to raise revenues from this enactment or just seek compensation for the cost of offering a special service, benefit, or privilege to those who voluntarily seek the service, benefit, or privilege?
• Is the money to be used for the maintenance of a governmental service offered to the general public?
We agree with the district court when it looked at this fee and called it a tax. The bellwether case on this point is Executive Aircraft. The Supreme Court adopted definitions of the two terms— tax and fee, which are simple, straightforward, and cogent:
“[A] tax is a forced contribution to raise revenue for tire maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon the general public. A fee is not a revenue measure, but a means of compensating tire government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary—an individual can avoid the charge by choosing not to take advantage of tire service, benefit, or privilege offered.” 252 Kan. at 427-.
A careful reading of the two definitions reveal distinct contrasts between tire two terms concerning who pays, what is collected, and what the money is used for.
If we follow the definitions set out in Executive Aircraft and answer some pertinent questions about the effects of the City of Mission’s transportation user fee, we can reach a conclusion whether this enactment is a tax or a fee. All the answers lead us to conclude it is a tax.
First, who has to pay it? All owners of improved real estate have to pay this fee annually when they pay their ad valorem property taxes. This fee is city-wide in scope. Landowners cannot opt out of paying this fee for it is incident to their ownership of their property. Amongst owners of improved real estate, only those entities exempt from ad valorem property taxes are exempt from this fee. Failure to pay this fee could lead to a sheriff s sale of tire property after the City’s lien imposed for nonpayment is foreclosed. This is an involuntary contribution forced by law.
Second, the City states clearly that the purpose of this fee is to raise revenues to help pay for maintenance of its streets. Nothing in die record on appeal leads us to believe that any of the money collected from this fee is to pay for any special service or benefit offered by the City to any specific landowner or group of landowners. This fee is a revenue enhancement measure, not a payment for services. The money from this fee is used to augment the City’s transportation fund.
Third, the money is to be used to maintain the City streets, curbs and guttering, bicycle paths, bridges, and countless other needs of a system of streets and roads that is open to the general public. Providing a way to get around in the city is one of the core governmental services that a city provides, such as police and fire protection. This money is for the common good, not just for the specific good of the landowner paying it. The motoring, bicycling, and walking public, whether or not they are residents of Mission, benefit from the maintenance provided by these funds.
With those answers, it is no great leap to conclude that this fee is a tax. To sum up, this fee is an annual forced contribution from all improved real estate owners that is used for the maintenance of a governmental service available to the general public.
Our Supreme Court has repeatedly acknowledged the distinction between táxes and fees as defined in Executive Aircraft. In Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116, 991 P.2d 889 (1999), tire court cited the definition in Executive Aircraft in finding that the tolls collected by the Kansas Turnpike Authority are not taxes, but fees for the privilege of using the turnpike which are designed to defray the cost of providing the service. Then, in Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 264 Kan. 363, 399, 956 P.2d 685 (1998), the court relied on the definition in Executive Aircraft in finding that a surcharge was not a tax because its purpose was not to raise revenue.
We are not persuaded by the authorities cited by the City. First, the City cites Home Builders Ass’n v. City of Overland Park, 22 Kan. App. 2d 649, 664, 921 P.2d 234 (1996). The City basically questions the reliability of the definitions of tax and fee in Executive' Aircraft when it states in its brief: “ ‘K.S.A. 12-194 formed no part of the Executive Aircraft court’s ultimate holding,’ and thus, is more akin to dicta to the extent it has any persuasive value.” Yet, a close reading of Home Builders, 22 Kan. App. 2d at 670, reveals that the court relied upon the definitions of fee and tax we have used here when it quoted from Executive Aircraft in its opinion.
Next, the City argues the transportation user fee is akin to or has the characteristics of mandatory stormwater and sewer fees. It cites Regency Park v. City of Topeka, 267 Kan. 465, 471, 981 P.2d 256 (1999), as support. In Regency Park, the Kansas Supreme Court noted that mandatory charges for the handling and disposing of stormwater and sewage, which are both necessary to the health and welfare of citizens and property owners, “should not be characterized as a tax.” 267 Kan. at 471-72.
Basically, Regency Park illustrates that a city in Kansas has the authority to charge a fee for tire water and sewage services it directly provides to property owners. See K.S.A. 12-808, K.S.A. 12-3104. A stormwater fee “is paid for services actually furnished and necessary for the quiet enjoyment of the property rights of each plaintiff landowner.” 267 Kan. at 472. The charge is unique to each tract served by the storm sewer. In contrast, the transportation user fee here is not specifically paid for the quiet enjoyment of the property rights of each developed property owner, but for the benefit of the general public. There is, at most; only a tangential relationship between the amount charged for the street maintenance of the streets abutting the developed property and the property owner’s actual use of those city streets.
We also detect an inconsistency here by the City. A church in Mission is required to pay a stormwater utility fee. Yet, the City specifically relies on the tax-exempt status of churches under K.S.A. 79-201 to exempt churches from paying the transportation user fee. The City included this exemption for those properties exempt under K.S.A. 79-201 when settling a lawsuit initiated by the First Baptist Church of Mission and others seeking to enjoin tire City from enforcing the fee because it is allegedly a property or ad valorem tax for which they are exempt. The City treated it as a tax when compromising with the churches but now maintains that it is a fee. It cannot be both.
Finally, the City argues that the definitions in Executive Aircraft are neither binding nor persuasive in the context of this case because the Bloom analysis of voluntariness in the context of a special fee is more persuasive than the description of a tax and fee in Executive Aircraft. In other words, the City is arguing we should disregard the accepted Kansas definition of a tax and fee and create a hybrid, i.e., an involuntary fee. If this is an invitation to make new law, we decline.
In Colorado, a special fee is “a charge imposed on persons or property and reasonably designed to meet the overall cost of the service for which the fee is imposed.” Bloom, 784 P.2d at 310. In Bloom, the Colorado Supreme Court relied on a comparison of the transportation utility fee with a sewer service charge and storm drainage fee to find the transportation utility fee was a special fee not contingent on the voluntaiy choice of property owners. 784 P.2d at 310-11. Such a comparison on how Kansas views sewer service charges and storm drainage fees makes the Colorado test for a special fee unworkable.
In Kansas, “sewer charges by a municipality must be tied to tire use of die services and the fee imposed, ... is not a tax, but a charge for services rendered.” (Emphasis added.) Jennings v. Walsh, 214 Kan. 398, 401, 521 P.2d 311 (1974). Further, a payment for die disposal of stormwater is a fee “paid for services actually furnished.” Regency Bark, 267 Kan. at 472.
In contrast, a sewer service charge and storm drainage fee in Colorado is not contingent upon services actually rendered or furnished to an individual, but can be reasonably set to defray the overall cost of the services to the public. Bloom, 784 P.2d at 310-11. Moreover, Colorado’s requirement that a stormwater fee only be “reasonably designed" for the benefit of the public is at odds with the requirement in Regency Bark that a stormwater fee paid in Kansas must be “necessary for the quiet enjoyment of the property rights of each plaintiff landowner." (Emphasis added.) Regency Bark, 267 Kan. at 472.
We review home rule authority.
The City argued in its motion for summary judgment that this enactment was a special fee adopted under its home rule authority and not a tax or an excise tax. In its view, since this is not a tax, it cannot be a prohibited excise tax. A review of the home rule au-diority of Kansas cities is helpful at this point.
The Home Rule Amendment of the Kansas Constitution grants cities the power to determine their local affairs and government through “the levying of taxes, excises, fees, charges and other ex-actions.” Kan. Const, art. 12, § 5(b). The powers and authority granted to cities under tire Home Rule Amendment “shall be liberally construed for the purpose of giving to cities the largest measure of self-government.” Kan. Const, art. 12, § 5(d). For that reason, when courts examine the legality of an ordinance created by an exercise of home rule authority, the ordinance is entitled to a presumption of validity and should not be stricken unless its infringement upon a statute is clear beyond substantial doubt. Executive Aircraft, 252 Kan. at 424.
Cities in Kansas have two methods to exercise their home rule authority. First, cities may enact ordinances of any type on subjects not addressed by die legislature. Kan. Const, art. 12, § 5(b). Second, cities may exempt themselves, in whole or in part, from a statute with statewide effect by employing a charter ordinance, which is subject to notice requirements and public challenge not applicable to ordinary ordinances. Kan. Const, art. 12, § 5(b), (c). See Farha v. City of Wichita, 284 Kan. 507, 513, 161 P.3d 717 (2007).
But there are limits to this opting-out process. Cities are prohibited from using an ordinaiy or a charter ordinance to exempt itself from four specific types of legislative acts: (1) enactments of statewide concern which are uniformly applicable to all cities; (2) other legislative enactments uniformly applicable to all cities; (3) enactments uniformly applicable to all cities of the same class that limit or prohibit “the levying of any tax, excise, fee, charge or other exaction”; and (4) legislative enactments prescribing limits of indebtedness. (Emphasis added.) Kan. Const, art. 12, § 5(b); Farha, 284 Kan. at 514.
In Kansas, the legislature, by enacting tax laws that apply uniformly, can preempt cities and counties from enacting and enforcing certain taxes such as excise taxes. We move now to our analysis of whether this tax is an excise tax.
Some fundamental legal points are at work here.
Heartland argues that because this City ordinance imposes a tax, we must examine and construe K.S.A. 12-194 in its favor as a taxpayer. Indeed, in Executive Aircraft, the Kansas Supreme Court reiterated the principle that tax laws must be strictly construed because they are statutory and do not exist apart from the statute and “ ‘[wjhere there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer/ [Citation omitted.]” 252 Kan. at 425.
Since we, like the Kansas Supreme Court in Executive Aircraft, are examining a statute within the context of the Home Rule Amendment, the City’s ordinance is presumed to be valid unless its infringement upon the tax statute “is clear beyond substantial doubt.” 252 Kan. 421, Syl. ¶ 2. In other words, if it is clear beyond a substantial doubt that the tax the City assesses though this ordinance conflicts with K.S.A. 12-194, the ordinance is an invalid exercise of its home rule power. See Executive Aircraft, 252 Kan. at 424-25.
This is an excise tax.
Under Kansas law, K.S.A. 12-194, cities cannot levy or impose an excise tax or a tax in the nature of an excise tax. The statutes do not define excise taxes or the phrase “tax in the nature of an excise tax.” We must now decide whether tire City’s transportation user fee is an excise tax or a tax in the nature of an excise tax prohibited by this statute. Heartland and tire others argue it is. The City argues it is not. Obviously, this question requires a determination of legislative intent—what taxes did tire legislature intend to prohibit by this law?
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013).
We hold the legislature has enlarged what taxes are prohibited to such an extent that this tax can be no other tax than an excise tax and is thus prohibited by law. To make our reasoning clear on this point, we must examine how the statutes dealt with prohibiting municipal excise taxes before and after the amendments to the laws in 2006.
The former statute, K.S.A. 1971 Supp. 79-4424(a) is the predecessor to K.S.A. 12-194. That version of the law had some specific wording dealing with sales, and the use of property as well as services:
“No city shall impose an excise tax or tax in the nature of an excise, upon a sale or transfer or personal or real property, or the use thereof, or the rendering of a service. . . .’’ (Emphasis added.) K.S.A. 1971 Supp. 79-4424(a).
The specific wording used in the statute was important. Two appellate cases illustrate our point. In Callaway v. City of Overland Park, 211 Kan. 646, 508 P.2d 902 (1973), the Kansas Supreme Court determined whether the City of Overland Park could impose an occupational use tax on certain rental properties. The court described the type of tax prohibited by K.S.A. 1971 Supp. 79-4424 as a tax imposed on a “transactional basis.” 211 Kan. at 655. The Callaway court defined the prohibited tax on a transactional basis to be one “upon each sale, transfer or use of personal or real property or upon each rendition of service by a licensee or taxpayer.” 211 Kan. at 655. In affirming the district court, Callaway concluded that the tax at issue in that case was not due on a transactional basis:
“The tax imposed by the Overland Park ordinance is upon engaging in a particular business, in this case leasing rental properties. The tax imposed, .0035 dollars per square foot of living space subject to being l'ented or leased, is an annual governmental exaction. It is not due on a transactional basis for it is paid only once a year whether the properties are rented or vacant and whether the same property is rented one or more times during a year.” (Emphasis added.) 211 Kan. at 651.
Then, dealing with the newer manifestation of this prohibited tax, K.S.A. 12-194, a panel of this court in Home Builders, 22 Kan. App. 2d at 656, addressed whether K.S.A. 12-194 prohibited a tax levied on the business of platting real property. The City of Overland Park argued that the tax did not fall on the use of real property because it was not tied to the type of activity for which the property was being employed. The Home Builders panel agreed that the trial court erred in finding the tax was levied upon the use of real property. Our panel concluded that platting was not “integral to the ‘use’ of property, as that term is commonly understood, when a plat is not tied to the . . . enjoyment of the land itself ” (Emphasis added.) 22 Kan. App. 2d at 658. Thus, our panel held the tax was not prohibited.
Both the Callaway and Home Builders courts permitted the questioned taxes because they were not taxing transactions. These interpretations were based on the working definitions adopted by the Callaway court for excise and ad valorem property taxes:
“The term ‘excise tax’ has come to mean and include practically any tax which is not an ad valorem tax. An ad valorem tax is a tax imposed on the basis of the value of the article or thing taxed. An excise tax is a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege.” (Emphasis added.) Callaway, 211 Kan. at 651.
We note that the Kansas Supreme Court has subsequently-stepped away from its general statement in Callaway drat an excise tax includes “practically any tax which is not an ad valorem tax.” In Von Ruden v. Miller, 231 Kan. 1, 8, 642 P.2d 91 (1982), the court noted that “[t]he Kansas intangibles tax fits neitirer the definition of an ad valorem tax nor an excise tax. However, the Callaway definition of an excise tax, “a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege” is well accepted. 211 Kan. at 651; see Application of Kaul, 261 Kan. 755, 757, 933 P.2d 717 (1997).
But, the law is seldom static. In 2006, the legislature enacted “[a]n Act concerning sales taxation; relating to retailers’ sales tax, authority of cities; excise tax, limitations.” L. 2006, ch. 204, sec. 3. As the title of the act suggests, the legislature again concerned itself with limitations on tire home rule powers to enact excise taxes. Importantly, the legislature removed the language considered in Callaway and Home Builders regarding the sale or transfer of personal or real property, or the use thereof. Basically, the legislature subsequently struck tire specific wording of the statute dealing with sales, use of property, and services found in K.S.A. 1971 Supp. 79-4424(a) and subsequently in K.S.A. 12-194 in 2006. L. 2006, ch. 204, sec. 3. The current version of K.S.A. 12-194 broadly prohibits excises taxes and uses no specific language:
“(a)... no city or county shall levy or impose an excise tax or a tax in the nature of an excise, other than a retailers’ sales tax and a compensating use tax, but the provisions of this section shall not be construed as prohibiting any city from [exceptions listed]. “ K.S.A. 2014 Supp. 12-194.
Here, the legislature eliminated the specific provision of the statute that limited the prohibited taxes to those excise taxes imposed on a transactional basis. With this revision, the clear statutory language leaves the general language, “no city or county shall levy or impose an excise tax or a tax in the nature of an excise” as the controlling provision of the law.
Simply put, the legislature removed all transactional bases as a way to decide if a tax is an excise tax prohibited by law. The ruling in Callaway on that point no longer controls. But the general ob servation found in Callaway does control now. “The term ‘excise tax’ has come to mean and include practically any tax which is not an ad valorem tax.” 211 Kan. at 651. What was once permitted is now prohibited.
It is always significant when the legislature eliminates a specific ban and leaves a general prohibition in place. Two fundamental points must be made here. When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 464, 228 P.3d 403 (2010). Courts generally presume that the legislature acts with full knowledge of existing law. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 906, 249 P.3d 434 (2011). Clearly, with these amendments, the legislature wanted to prohibit more taxes than before.
If we compare and contrast the differing language of the two versions of the statute, the prior version, as interpreted by the courts in Callaway and Home Builders, was permissive in that it directs that a city can impose any excise tax it wants except for those imposed on a transactional basis. However, by eliminating the specific provision of the statute concerning the necessity that the excise tax imposed must not be on a transactional basis and just leaving the general language as the controlling provision, the legislature has turned the statute from a permissive statute into a prohibitive statute.
The legislature has unequivocally stated that a city or county is explicitly prohibited from levying or imposing “an excise tax or a tax in the nature of an excise” except for one of the enumerated exceptions. K.S.A. 12-194. We must read the statutes so as to give effect to every part thereof. State v. Campbell, 279 Kan. 1, 5, 106 P.3d 1129 (2005).
No case has yet considered the 2006 amendments. It is certainly clear that the legislature’s decision to remove the language regarding the sale or transfer of personal or real property, or the use thereof, greatly broadened the reach of the prohibiting statute. The statute now sets out a general prohibition against excise taxes, followed by five specified exclusions:
(1) A fixed charge upon gross receipts of a franchisee;
(2) an occupational tax (with some exceptions);
(3) an occupational tax already imposed prior to tire effective date of the statute;
(4) any development excise tax levied before January 1, 2006;
(5) an excise tax on tickets for concerts, theatrical performances, and sporting events on city owned property. K.S.A. 2014 Supp. 12-194(a).
Neither side claims that the fee imposed by the City fits within any of these exceptions to the general prohibition in K.S.A. 12-194. Therefore, we must hold the transportation user fee enacted by the City of Mission is invalid because it is not a permitted excise tax.
Interestingly, this tax would have been prohibited under the older version of K.S.A. 12-194 as well, since it is based upon how landowners use their real estate. The transportation user fee in this case is not triggered by just ownership but is taxing the enjoyment of owning developed property. Black’s Law Dictionary 609 (9th ed. 2009) defines “enjoyment” as “[possession and use, esp. of rights of property” or “[t]he exercise of a right.” In other words, how landowners elect to develop or use their developed property, whether for commercial, industrial, recreational, or residential use, triggers tins tax.
This fee is clearly assessed, in part, on how property owners decide to use their property. Plainly, the property owners’ decision directly affects the City’s determination of tire amount of the direct and indirect volume of traffic each property generates, the type and size of such traffic, and the traffic generation factor. The larger the developed square footage and the greater the use or disposition made of the developed property, the greater the tax. In sum, this tax taxes tire use of developed property and would have been prohibited as an unauthorized transactional excise tax under the former law.
With the broader prohibition of excise taxes now in effect, it is clear beyond a substantial doubt the transportation user fee is an excise tax or a tax in the nature of an excise and the City exceeded its home rule authority. See Kan. Const, art. 12, § 5(b); K.S.A. 12-194; see Executive Aircraft, 252 Kan. at 424-25.
Remaining issues
Given our ruling here, we need not address Heartland’s due process and equal protection arguments. The same is true for Heartland’s argument raised after summary judgment was granted, that tire City failed to properly follow the procedures in K.S.A. 12-137 for the enactment of Home Rule Ordinances, commonly called Charter Ordinances. Because new claims for relief are not properly raised in a motion to amend after judgment, tire district court acted within its discretion in denying Heartland’s motion on this issue. See Wenrich v. Employers Mutual Ins. Companies, 35 Kan. App. 2d 582, 590, 132 P.3d 970 (2006).
Going further on this point, Heartland’s attempt to have us consider its K.S.A. 12-137 issue under one of the several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, is unconvincing. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009). Even though Heartland argues the question whether tire City followed K.S.A. 12-137 presents only a question of law that is finally determinative of this case, we will not address the issue because the record on appeal does not contain the un-controverted facts necessary to resolve this issue. Heartland fails to point us to the “proved or admitted facts” necessary to make such a determination under this exception to the general rule. See In re Estate of Broderick, 286 Kan. at 1082.
We hold the transportation user fee enacted by the City of Mission is an excise tax banned by law and is therefore void.
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Hill, J.:
The Kansas Corporation Commission granted Kansas City Power & Light Company a rate increase of $48.67 million. KCP&L wants more.
The company appeals, claiming the Commissions findings of fact are not supported by substantial competent evidence. Additionally, the company contends that the Commissions decision to exclude flotation costs when calculating its return on equity was unreasonable, arbitrary, or capricious. After reviewing the entire record and not reweighing the evidence, we hold the Commissions rate increase indeed is supported by substantial competent evidence. The Commission weighed conflicting expert opinions, accepted some, rejected others, and adopted a middle ground approach in computing this new rate. Additionally, the Commission has met its goal of balancing the interests of all parties concerned when it formulated this rate. We affirm.
The case history reveals the administrative process.
KCP&L is a vertically integrated electric public utility that produces, transmits, and delivers electrical power to customers in designated areas of northeast Kansas and parts of Missouri. KCP&L is a wholly-owned subsidiary of Great Plains Energy, Inc., (GPE) based in Kansas City, Missouri. GPE is a public utility holding company which also owns another utility, GMO, formerly Aquila, Inc. KCP&Ls Kansas customers include more than 200,000 residences, 28,000 commercial firms, and 1,000 industrial and municipal facilities. KCP&L provides retail electrical services and also sells electrical power wholesale and in bulk power transactions.
In January 2015, KCP&L filed its application seeking to increase its Kansas rates by $67.3 million; this amounted to a 12.5 percent increase for KCP&L customers. KCP&Ls prefiled testimony in support of the rate increase was based on test year data from July 2013 through June 2014, plus known and measurable changes projected through March 31, 2015. KCP&L submitted prefiled testimony in support of its application. A number of parties intervened in the proceeding, including the Citizens Utility Ratepayer Board (CURB) and Walmart, Inc. The Commissions Staff and various in-tervenors also submitted prefiled testimony challenging different aspects of KCP&L’s rate calculations.
Prior to any evidentiary hearing, KCP&L, the Commission’s Staff, and several of the intervenors entered into settlement agreements on some of the issues raised by the application. As a result, the Commission’s hearing was limited to testimony on four issues, one of which was the appropriate return on equity (ROE)—the cost the company needed to pay a reasonable return to holders of common stock. The ROE is used as a multiplier when calculating KCP&L’s overall revenue requirement.
This appeal’s focus is on one issue.
The issue of this appeal is did the Commission use the appropriate return on equity in calculating KCP&L’s cost of capital? Obviously, the cost of capital, in turn, affects the company’s revenue requirements—the fundamental base of a utility rate.
Appropriate returns on equity are complex calculations that involve the weighing of many arcane economic factors and are the subjects of expert analysis. In this case there were four such experts: one for KCP&L, one for the Staff, one for CURB, and one for Walmart.
KCP&L presented the testimony of Robert Hevert, an expert who has provided consulting services to many energy and utility clients. Using various economic models and forecasts, Hevert opined that 10.3 percent was a reasonable estimate of investors’ expectations of returns from KCP&L’s stock. Similarly, a KCP&L executive testified that the ROE set in the Commission’s approved rates in January 2013—9.5 percent—had not been achieved, nor had a higher ROE from earlier cases been achieved as a result of the company’s operations. In addition, the executive testified that KCP&L had been reducing dividends over tire last few years because of decreased earnings, required capital expenditures, and the lag in recovery of those expenses.
In response, Staff presented the testimony of Adam Gatewood, the Managing Financial Analyst of the Commission’s Utilities Division. Gatewood did not dispute KCP&L’s calculations of its cost of debt and preferred stock, but he disagreed with the utility’s requested 10.3 percent ROE for common equity. Gatewood asserted that KCP&L’s calculations were based upon overly optimistic growth estimates of corporate earnings. Gatewood testified that based on his use of the same analytical and forecasting models, he believed a range of 9.0 and 9.50 percent ROE was reasonable. Gatewood’s calculations were based, in part, on evidence that most measures of capital costs had declined since the prior rate case in 2013.
Two intervenors also presented testimony regarding the appropriate percentages. CURB presented the testimony of J. Randall Woolridge, Ph.D. Woolridge’s analysis was based upon various estimating models using his own selected proxy group as well as the proxy group of KCP&L’s expert. Woolridge opined that the appropriate cost of equity for KCP&L was 8.55 percent.
Walmart’s expert, Steve Chriss, testified on various subjects including KCP&L’s requested ROE. Chriss testified that based upon KCP&L’s proposed ROE, its revenue requirement would increase approximately $14 million—about 25 percent of the company’s requested rate increase. Chriss opined that the utility’s ROE request was excessive because of the large impact on its revenue requirement and because it was higher than ROEs approved by state regulators nationwide. Chriss did not conduct an independent calculation beyond testifying about nationwide trends.
After taking evidence on the matter, the Commission issued its initial order on the application on September 10, 2015, that summarized the procedural aspects of the case and approved the two settlement agreements. With respect to the ROE issue, the Commission summarized the testimony of the various experts and discussed the legal authorities establishing standards applicable to returns authorized for regulated utilities. In analyzing the testimony, the Commission found that KCP&L’s request for an ROE over 10 percent was disputed by the other experts, none of whom recommended an increase over the 9.5 percent previously allowed in the company’s last prior rate case. The Commission found that KCP&L’s proposed ROE ran counter to trends in Kansas and nationwide of historically low costs of capital. The Commission also took issue with Hevert’s testimony because he failed to adjust his ROE calculation after he reduced his projected growth rate by nearly 25 points (0.25 percent). The Commission found that He-vert’s growth rate was much higher than estimates of growth made by the Federal Reserve Board, the Social Security Administration, and other established predictors of the economy. The Commission also rejected tire testimony of CURBs expert, Woolridge, as too low.
The Commission also denied KCP&L’s request that the ROE include an adjustment for flotation costs associated with the issuance of common stock, based on the company’s failure to provide evidence of the amount, if any, of unrecovered costs associated with the issuance of its common stock during the test year. Changing its prior practice, the Commission concluded that the better practice in treating flotation costs was to make pro forma adjustments to the test year operational costs to include any actual costs associated with the issuance of common equity. (The other issues in the Commission’s order need not be addressed, as KCP&L does not challenge those determinations either in its petition for review or its appellate brief.)
KCP&L argued that the Commission’s decision relating to the treatment of flotation costs violated the principle set forth in Home Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 1002, 1011, 76 P.3d 1071 (2003), rev. denied 277 Kan. 923 (2004). KCP&L asserted the Commission had changed its procedure for treating flotation costs without adequately explaining the basis for that change. KCP&L further argued that the Commission’s altered treatment of flotation costs was arbitrary and capricious because KCP&L had no prior notice of this change before it filed its application. Finally, KCP&L argued that the overall ROE decision rendered the final order outside the “zone of reasonableness” and, therefore, was unlawful.
KCP&L seeks judicial review with this court according to K.S.A. 66-118c. The utility contends that based upon the record as a whole, the Commission’s ROE determination is not supported by substantial competent evidence. The company argues that the Commission failed to properly weigh the evidence supporting and detracting from its decision and based its ruling on weak, assailable testimony. KCP&L asks us to reverse the Commission’s decision.
We repeat our standard of review.
Judicial review of a utility rate appeal must be filed directly in the Court of Appeals. K.S.A. 66-118a(b). The Kansas Judicial Review Act, K.S.A. 77-601 etseq., controls howwe review such cases. In the context of this case, our scope of review focuses on the facts as found by the Commission. It is the familiar substantial competent evidence standard but with an expanded field of inquiry—the entire record:
“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 . . . .” (Emphasis added.) K.S.A. 2015 Supp. 77-621(c)(7).
The legislature modified the statute in 2009 to clarify that the phrase “in fight of the record as a whole” means:
“the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in fight of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record . . . cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in fight of the record as a whole, the court shall not reweigh the evidence or engage in ele novo review.” (Emphasis added.) K.S.A. 2015 Supp. 77-621(d).
In addition, the court must, when exercising judicial review, take into account the harmless error rule. See K.S.A. 2015 Supp. 77-621(e).
Although the amended Act requires judicial review of all the evidence supporting and detracting from the agency’s decision, nothing in the statute indicates the legislature intended to alter the traditional standards applicable in Commission decisions regarding public utility rates.
Simply put, under the Act, the Commission s order may only be set aside by the court if it is not supported by substantial competent evidence based upon the record as a whole; is without foundation in fact; or is otherwise unreasonable, arbitraiy, or capricious. See Kansas Industrial Consumers v. Kansas Corporation Comm’n, 30 Kan. App. 2d 332, 335, 42 P.3d 110 (2002). In this case, KCP&L— the party claiming the Commission’s actions are invalid—bears the burden of proving that invalidity. K.S.A. 2015 Supp. 77-621(a)(l); see Clawson v. Kansas Dept. of Agriculture, 49 Kan. App. 2d 789, 795, 315 P.3d 896 (2013).
We make some observations on the unique role of the KCC.
The Kansas Supreme Court has pointed out that the Commission’s work is legislative in nature.
“Under the constitutional separation of powers doctrine, tire regulation of public utilities is legislative in nature. The legislators created the Kansas Corporation Commission and granted it fuE and exclusive authority and jurisdiction to supervise, control, and regulate the public utilities of this state and, when acting in the exercise of its delegated powers, the Commission is not a quasi-judicial body. [Citations omitted.]
“Thus, public utility rate making is a legislative function, whether it is regulated by an administrative body or by the legislature itself.” Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 491, 720 P.2d 1063 (1986).
The legislature has vested the Commission with broad discretion in executing its functions. Because of this extensive discretion, we have no authority to substitute our judgment for that of the Commission. More importantly, the Commissions decisions involve complex problems of policy, accounting, economics, and other special knowledge that go into fixing utility rates. As a result, the court may not set aside a Commission order merely because the court would have arrived at a different conclusion had it been the trier of fact. The court may reverse or nullify a Commission order only when the decision is so wide of the mark as to be outside the realm of fair debate. Kansas Industrial Consumers, 30 Kan. App. 2d at 336.
The Commission is also unique because it is the only factfinder. It does not review evaluations of credibility made by subordinate hearing officers or panels. It makes tiróse credibility decisions itself. Even when this court reviews the agency’s decision in light of the record as a whole, it is not our responsibility to reweigh the credibility of the witnesses or reweigh the evidence relied upon by the Commission. K.S.A. 2015 Supp. 77-621(d); see Mobil Exploration & Producing U.S. Inc. v. Kansas Corporation Comm’n, 258 Kan. 796, 815, 908 P.2d 1276 (1995). Even though the legislature altered the court’s scope of review under the Act, it has not altered the broad discretion it has previously delegated to the Commission.
We examine the battle of the experts.
Three experts presented detailed opinions on the appropriate ROE for KCP&L. Each expert compared the performance of different proxy companies by using the Discounted Cash Flow (DCF) model and Capital Asset Pricing Model (CAPM) of economic analysis. These calculations were performed to reach a reasoned estimation of the amount of return on common stock required to enable KCP&L to remain financially sound and attract new investors, while balancing the interests of the public in paying reasonable rates. KCP&L argues that its expert, Hevert, provided the most rehable and credible evaluation of the ROE. In other words, “our experts estimations are better than your expert’s estimations.”
The starting point for ROE calculations under these models is the selection of proxy companies to use as comparisons. In using the DCF and CAPM models, each expert selected proxy companies to compare the current ROE the companies receive. While there was overlap between the experts’ proxies, both Staff and CURB used significantly more companies in their proxy comparison. The following chart illustrates the variations:
Proxy Companies Used for Comparison
The use of proxy groups in ROE analysis provides a significant benefit because it ameliorates short-term events that could bias market values of individual companies. At the time KCP&L’s rate case was filed, its parent corporation, GPE, had comparable ratings from both Standard & Poor’s (BBB+) and Moody’s (Baa2) investors’ services and was rated as “outlook: Stable.” The proxy companies selected by the experts possessed similar ratings. Hevert used only companies with BBB+ and Baa2 ratings. Gatewood used electrical utilities with those ratings as well as the ratings immediately above and below BBB+ and Baa2. Woolridge testified he used proxy companies with similar ratings as KCP&L.
In order to illustrate the issue confronting the Commission, we summarize the experts’ testimony. This is a distillation of the many boxes containing the record on appeal. We have taken pains to illustrate many details from the experts’ testimony because KCP&L contends substantial facts do not support the Commission’s findings. The many details that follow show why that is not true.
We look first at the KCPb-L expert, Hevert.
In selecting his proxy group, Hevert first chose 13 companies with comparable ratings and risk. In using the DCF model to estimate an appropriate ROE, Hevert included information from these proxy companies together with projected long-term earnings growth estimates from various nongovernmental investment sources. Using the mean measurements of ROE for the proxy companies along with the average of the growth rate estimates, Hevert calculated a high mean, a mean, and a low mean estimation of ROE. Hevert then adjusted these figures to include flotation costs. This methodology resulted in a mean ROE of 9.36 to 9.62 percent and a high mean of 10.34 to 10.60 percent. With no explanation, Hevert did not include the low mean range—8.32 to 8.57 percent—in any of his detailed analysis.
Next, Hevert used a Multi-Stage DCF model, which defines the cost of equity using a discounted rate. In this model, current price is equated with the discounted value of future cash flow measured at three different time stages. Purportedly this model is able to focus on near-, intermediate-, and long-term growth rates, recognizing a company will not necessarily grow at a constant rate. It also can take into account likely increases or decreases in expected capital spending and the transition to long-term expected payout levels. In using this model, Hevert assumed a long-term growth rate of 5.61 percent, asserting that it was reasonable to assume that over time gross domestic product (GDP) will revert to its long-term (80 year) mean. This analysis, based on Hevert’s inputs, resulted in a mean range of 9.79 to 10.07 percent ROE and a high mean range of 10.07 to 10.36 percent ROE. Again, Hevert’s testimony excluded his low mean range of 9.53 to 9.79 percent.
The third type of analysis Hevert conducted involved the use of the CAPM model. This model includes a risk premium factor to compensate investors for “the non-diversifiable or ’systematic’ risk of that security.” The formula includes an estimate of the relative volatility of the company’s stock as compared to the overall stock market. Using inputs from his initial DCF model and nongovernment market sources, Hevert calculated a “market capitalization weighted average” under the DCF model and then subtracted the current 30-year Treasury bond yield. Hevert then factored in a premium because equity investors bear greater risk than bondholders and require additional compensation for that risk. Taking into account all of these factors, Hevert opined that the ROE under this model ranged from 10.24 to 10.92 percent.
Finally, Plevert testified that in addition to the projections obtained from the various calculation models he used, he considered individual factors which affected KCP&L’s risk profile. He-vert said that KCP&L’s energy generation was highly dependent on coal-fired and nuclear-fired generation capacity, both of which were capital intensive. This dependency increased KCP&L’s risks because of the cost of potential plant failures, shut downs, and replacement of facilities. Similarly, increased environmental and safety regulations required additional capital investment. Plevert also testified about significant plans of GPE—the parent company—for capital expenditures, although his testimony fails to reflect how much of the planned budget involved KCP&L versus GPE s other subsidiary. These factors, according to Hevert, established a higher risk factor that had to be considered in calculating the ROE. In light of all the models used and factors considered, He-vert testified that based upon all the data, an ROE in the range of 10.00 to 10.60 percent was a reasonable estimate of KCP&L’s cost of equity. He recommended a midpoint ROE of 10.30 percent be used. Based upon KCP&L’s undisputed cost of debt and capital structure, a 10.30 percent ROE resulted in an overall weighted rate of return of 7.94 percent.
We review the work of Staff s expert, Gatewood.
In response to the ROE issue, Staff presented the testimony of Adam H. Gatewood, a long-time Commission employee. In discussing KCP&L’s rate of return, Gatewood agreed with the company’s proposed cost of debt and cost of preferred stock, but he challenged the company’s request for a 10.30 percent return on common stock.
Gatewood acknowledged Hevert’s discussion of recent ROE decisions from other regulatory commissions for similar electrical companies. Gatewood stated that recognizing the ROEs granted to other utilities in other jurisdictions was relevant but not controlling in determining an ROE for an individual company. Gatewood testified that limiting the ROE analysis to other jurisdictions’ decisions risked overlooking (1) changes in capital markets; (2) differences in the ratemaking policies of other states’ commissions; and (3) political pressures or other state-specific factors.
Similarly, focusing on the end-results of other regulators’ determinations ignored the fact-specific information in those other rate cases. According to Gatewood, ROEs authorized in other states could only serve as a “rough benchmark” of an average ROE. Gate-wood also opined that a utility’s ROE should not provide a “cushion” for potential future market changes because rates and factors impacting on rates are periodically reviewed in order to protect both consumers and investors. Gatewood testified that the Commission should not speculate—and courts should not require the Commission to speculate—about the future ups and downs of the economy and capital markets as opposed to making decisions on current information.
Gatewood used 22 proxy companies as compared to Hevert’s 13 companies when making his computations. Gatewoods proxies were all publicly traded electric utilities with similar credit ratings to KCP&L’s ratings with Moody’s and Standard and Poor’s or one step above or below that rating. Gatewood then eliminated companies with pending mergers or acquisitions; companies that did not have a stable dividend; and companies that derived less than 70 percent of their revenues from electric utility services. These limits had been adopted in recent filings with the Federal Energy Regulatory Commission (FERC). Gatewood opined the parameters provided a group of utilities with commensurate investment risk compared with KCP&L.
Like Hevert, Gatewood used the DCF model with information from his 22 proxy companies. Gatewood testified that regulatory commissions consistently used the DCF model “because, with reasonable inputs, it is a tool that meets tire legal standards and it is a tool that investors have used” to value many types of investments. Gatewood obtained public information on the current stock prices and dividends paid for each of the proxy companies as well as their projected 2016 annual dividend rates to input in his models.
Gatewood differed, however, in his view of anticipated growth rates to use in the DCF model. Gatewood testified that the growth rate has a significant impact on the ROE. Determining the estimated growth rate is subjective as it is an estimate investors use to determine stock price. Most investment firms forecast estimated growth for a 3-' to 5-year time horizon. However, the DCF model deals with a forecast for growth beyond that horizon. Those looking for a long-term perspective of potential growth, according to Gate-wood, rely on estimates of the country’s GDP that extends out more than 30 years, normalized due to inflation (nGDP). FERC uses the nGDP to estimate the cost of equity and returns for interstate pipe-fine companies as well as electric transmission companies.
Including these factors, Gatewood presented his DCF calculations using dividend and growth data from his 22 proxy companies. Gatewood determined the average of the short-term growth rates from the proxy companies and the nGDP. The latter was based on forecasts through 2090 from the Energy Information Agency and the Social Security Administration. Looking at this and other sources, Gatewood testified there was a consensus drat long-run economic growth in real terms would be a nominal growth rate of 4.3 to 4.5 percent. Gatewood testified that Heverts growth forecast of 5.61 percent exceeded the consensus from a number of seasoned, professional services and was unsupportable. Gatewood also performed an Internal Rate of Return (IRR) analysis, which is a form of a discounted cash flow analysis which allows one to apply growth forecasts for intended 5-year dividends with the remaining years growing at the long-term nGDP forecasted growth rate. Using this method with his proxy group, Gatewood found a mean IRR of 8.25 percent and a maximum IRR of 9.52 percent for KCP&L.
Gatewood likewise used the CAPM model in developing his opinion on an appropriate ROE. After detailing the elements and calculations using the CAPM model, Gatewood opined that the in-casters did not expect future returns to be as great as returns experienced in the past. Gatewood recommended basing the growth rate on a lower long-term economic growth estimate. His estimate was based upon widely accepted projections and expectations of investment advisors, investors, and public policy makers such as the Federal Reserve Board, the Social Security Administration, the Energy Information Administration, and corporations such as ExxonMobil. Gatewood testified that lower expectations of growth were consistent with the Commissions views expressed in recent rate cases. This included KCP&Ls position in a prior docket where the Commission found the company’s long-term growth rate was “‘unreasonably optimistic.’” Gatewood criticized Hevert’s long-run GDP forecast as unsupported by evidence in light of these other publicly available forecasts.
Gatewood also testified about the Commission’s decision in a KCP&L rate case filed 3 years earlier, referred to as the 764 Docket. Gatewood testified that during the 764 Docket, KCP&L had requested a ROE of 10.40 percent. However, since the 764 Docket, Gatewood testified that capital costs are measurably lower and stock market indices and the yield on long-term debt were at lows not seen in 50 years. Specifically, KCP&L’s interest rates on corporate debt dropped from 5.20 percent to approximately 4.80 percent. During the same period, the dividend yield from Hevert’s proxy group dropped from 4.45 percent to 3.80 percent. Using this DCF model, lower dividends equate to lower cost of equity.
Gatewood also criticized Heverts calculations in several other respects. First, Hevert’s measurement of credit ratings was inap-pi'opriate, resulting in the narrowing of his proxy group of comparable companies. Likewise, Hevert’s growth rate was based on various sources that limit earning growth on a 3- to 5-year horizon and assumed the utilities will grow at that rate in perpetuity. This assumption is well beyond what is expected of the overall economy. Even FERC staff, in recent federal proceedings, used a lower long-term growth estimate of 4.39 percent for nGDP. Hevert’s growth estimate is well above that of any credible published estimate and well above measurements adopted by the Commission in the recent past. Because Hevert’s growth estimates were unreasonable, his analysis under the multi-stage DCF calculation incorrectly concluded there was little difference between his anticipated growth rates for the short-term as well as the long-term.
The same issues of over-optimistic, double-digit growth projections also tainted Hevert’s CAPM analysis, according to Gatewood. Hevert should have recognized that his growth estimates were unreasonable as the numbers he relied upon were several times greater than the growth of the entire U.S. economy; “an earnings growth rate forecast that is so far above that of the economy should alert an analyst that it is not a realistic growth estimate to use in perpetuity.”
Finally, Gatewood testified that Hevert’s risk premium model—comparing the ROE granted to other utilities in other jurisdictions—is not a reasonable way to control an ROE decision. Gatewood had noted that this model could be based on outdated information. In his view, the risk of the electric utilities found in the historic data did not necessarily compare to the risk faced by KCP&L. According to Gatewood, just as one must select a comparable proxy group to perform a DCF analysis, comparing KCP&L to all electric utilities regardless of comparable risk is circular in reasoning. To him, the risk premium model also ignored changes in the industiy over time. Currently, rate design, pass-through charges, and other rate mechanisms have evolved, lowering the risk of utilities. Again, Heverts analysis failed to make any adjustment for changes in rate design and cost-recovery policies that shifted risk from shareholders to rate payers. Gatewood also rejected He-verts theory that KCP&L has unique risks as a result of its generation portfolio and capital expenditure plan. Although Gatewood acknowledged those risks existed, modern financial theory did not support the view that shareholders should be compensated for that risk; shareholders are not entitled to be compensated for every risk faced by a utility when investors can reduce their risk by diversifying their portfolios.
According to Gatewood, the appropriate ROE ranged from 9.0 to 9.50 percent. In making this determination, Gatewood rejected the lower end of his economic findings, which would have recognized an ROE range of 8.50 to 9.50 percent. Gatewood referred to this action as gradualism, recognizing that although KCP&L’s cost of debt has decreased, it had not decreased significandy. Moreover, Gatewood acknowledged that authorized ROEs below 10 percent were a relatively recent development in electric rate cases, and Gatewood was hesitant to recommend an ROE below 9.0 percent until there was more evidence that current lower capital markets would continue.
We offer CURBs expert opinion.
After reviewing KCP&L’s rate application and the testimony presented in support of it, Woolridge testified about the ROE issue on behalf of CURB. Woolridge, like the other experts, selected a proxy group of similar utilities and used the DCF and CAPM models using his selected proxies to determine a reasonable ROE. He also used Hevert’s proxy group using the same models. Wool-ridge testified that based on his analysis, the appropriate ROE for KCP&L was 8.55 percent.
In reviewing Hevert’s DCF calculations, Woolridge testified there were three primary errors in Hevert’s analysis: (1) He essentially eliminated 1/3 of his results by ignoring the low-mean figures in his analysis; (2) he relied excessively on overly optimistic fore-casted growth rates; and (3) the GDP growth rate he used was excessive, did not reflect economic growth in the U.S., and was about 100 basis points above projections of GDP growth. Recalculating Heverts DCF results using a more appropriate nGDP growth rate established that the proper equity cost rates mirrored Woolridge s.
Woolridge also challenged Heverts CAPM analysis. Again, Woolridge found Heverts calculations were based on unreasonably high assumptions about future economic and earnings growth. Woolridge testified he based his CAPM risk premium of 5.50 percent based on market risk reflected in recent academic studies by leading finance scholars, on premiums used by leading investment banks and management consulting firms, and on surveys of companies, financial forecasters, and financial analysts. Woolridge testified that Heverts risk premium CAPM approach focused on regulators’ behavior rather than investors’ behavior.
He testified that capital costs are determined through the financial decisions of investors, while regulators evaluate not only ROE but also take into account other utility- and case-specific information. Woolridge found that the risk premium was inflated since electric utility companies have been selling at a market-to-book ratio in excess of 1.0, meaning that the authorized rates of return have been greater than the return investors require. Woolridge testified his recommendation is below the average state-level authorized ROEs in light of the historically low capital cost rates in the markets. He testified that regulators have been slow to incorporate the lower ROE, but that the clear trend with regulators now has been toward lower ROEs, with the norm at less than 10 percent. Woolridge also detailed his disagreement with Heverts analysis of the impact of potential Federal Reserve actions.
Hevert filed rebuttal testimony challenging the testimony of Gatewood, Woolridge, and Chriss. Hevert recognized in his rebuttal testimony that economic conditions had changed slightly and he reduced his growth rate from 5.61 to 5.37 percent. But he did not believe the size of that reduction warranted a change in the ROE.
The following chart is a recapitulation of the experts’ testimony on ROE:
Discounted Cash Flow Analysis
EXPERT LOW MEAN MEAN HIGH MEAN Hevert 8.32-8.57 9.36 - 9.62 10.34 -10.60 Gatewood 8.09 8.41 8.73 Woolridge N/A 8.40-8.55 N/A
Capital Asset Pricing Model Analysis
EXPERT LOW MEAN MEAN HIGH MEAN Hevert 9.53 - 9.79 9.36 - 9.62 10.34 -10.60 Gatewood 6.61 - 6.96 N/A 10.03- 10.76 Woolridge N/A 8.1 N/A
How the Commission resolved this controversy.
In its order, the Commission made its objectives clear.
“In determining rates, the Commission first establishes a revenue requirement and tiren designs a rate structure. The revenue requirement includes rate base, operating expenses, and rate of return. The rate of return is simply an opportunity to earn that rate, not a guarantee. Rate design includes allocating costs among and within the customer classes.
“In setting rates, the Commissions goal is to balance the interests of all concerned parties and develop a rate within thgfzone of reasonableness.’ The parties whose interests must be considered and balanced include: (1) the utifitys investors vs. die ratepayers; (2) present vs. future ratepayers; and (3) die public interest.
“In allocating die revenue requirement among die customer classes, the Commission follows cost causation principles, so ‘tiiat one class of consumers shall not be burdened witii costs created by another class.’”
In rejecting the KCP&L requested ROE, the Commission thought the request too high and explained why.
“KCP&L’s proposed 10.3% ROE represents an increase of 80 basis points from its currentiy approved ROE of 9.5%. Both Gatewood and Woolridge testified KCP&L’s capital costs have declined since tiiat Order was issued in December of 2012. Wal-Mart’s witness, Steve Chriss testified the national average authorized ROE for vertically integrated utilities in 2014 was 9.91%, and as of June 2015 it is 9.71%. KCP&L is the only party advocating an increase to its 9.5% ROE. Despite both Staff and CURB recommending ROEs that are five basis points higher than what they recommended in the 12-764 Docket, there is no support for an ROE above 10%. KCP&L’s proposed ROE runs counter to the trends in Kansas and nationwide towards lower ROEs in recognition of historically low costs of capital.
“Despite lowering his projected growth rate from 5.61% to 5.37%, Hevert does not lower his recommended ROE range. The failure to adjust his recommended ROE range to account for a lower projected growth rate causes the Commission to question the validity of Hevert’s ROE recommendation. To reach KCP&L’s requested ROE, the economy must grow at a similar pace to the growth experienced over the previous eighty years. KCP&L presumes the U.S. economy will grow at an annual rate of 5.37%. This prediction is in sharp contrast to the estimates of the Federal Reserve Board, Social Security Administration, Energy Information Administration, and major corporations such as ExxonMobil, each of whom produce their own economic growth forecasts. Based on the current economic climate, the Commission believes a projected annual growth rate of 5.37% is unreasonably optimistic. The current economic conditions do not support the 10.3% ROE advanced by Hevert.
“At the same time, CURB’S recommended ROE of 8.55% strikes the Commission as too low. Woolridge’s recommended ROE is well below the average rates of return being allowed to electric utilities similar to KCP&L. As explained above, Chriss testified the national average authorized ROE for vertically integrated utilities in 2014 was 9.91%, and as of June 2015 it is 9.71%. Similarly, Gate-wood testified 9.1% represents the lowest current ROE in the nation. In Docket No. 14-ATMG-320-RTS, the Commission approved an ROE of 9.1% for Atmos. Atmos is a natural gas public utility. In setting Atmos’s ROE, the Commission recognized natural gas distribution companies are generally considered less risky than electric utilities, and therefore Atmos’s ROE should be lower than that of KCP&L. Consistent with Commission policy, CURB’S recommended ROE below 9.1% must be rejected.
“The Commission finds the nGDP growth estimates of 4.38% advocated by Gatewood, and consistent with the nominal forecast by the Social Security Administration and Energy Information Administration, to be more credible than the 5.37% suggested by Hevert. Gatewood testified that any ROE within his recommended range of 9.0% to 9.5% is reasonable. On cross-examination, Gatewood acknowledged drat the yield on KCP&L’s bonds is an important consideration in determining an authorized ROE.”
We examine KCP&L’s arguments.
KCP&L claims the testimony of Staffs expert, Gatewood, had been “seriously undermined” and therefore should have been rejected. KCP&L complains that the Commission failed to explain why it found Gatewood’s testimony more reasonable.
KCP&Ls complaints about Gatewoods ROE analysis are threefold. First, KCP&L argues that Gatewood’s analysis is unfounded because he failed to incorporate tire greater risk faced by KCP&L by using a broader range, thus less comparable, proxy group. Second, KCP&L disputes testimony that there was a statewide and national trend toward lower ROEs because of alleged lower costs of capital. Third, KCP&L characterized Gatewoods testimony regarding long-term growth rates as “weak” and undermined by Gatewood s attempt to limit his range from going too low.
In addressing KCP&Ls concerns as to the proper treatment of its high-risk factors, the utility contends that Staffs recommendation of a ROE well below the average returns allowed by other commissions was arbitrary, especially in light of KCP&Ls higher level of risk. KCP&L asserted that Gatewoods testimony about the risk rating for KCP&L (the Beta coefficient) failed to take into account the risks identified by Heverts testimony. Moreover, only one of the companies in Gatewoods proxy group had a Beta coefficient as high as GPE.
Gatewood testified, however, that the risk premiums used by Hevert were based upon historic data that was not reflective of current circumstances. Gatewood also relied on the Commissions current use of rate design, pass-through charges, and other rate mechanisms that lowered the risk for utilities; Gatewood claims Heverts testimony ignored these mechanisms. Gatewood agreed that the Beta coefficient of GPE/KCP&L was higher (its stock was more volatile) than almost all of the companies in his proxy group, but he stated that die differences were not drastic. Finally, Gate-wood noted that shareholders were not entitled to be compensated for every risk because investors can reduce risk by diversifying their portfolios.
KCP&L also discusses Gatewoods reliance on a nationwide trend toward lower ROEs and lower costs of capital. But, we note that Walmarts expert, Chriss, cited data from SNL Financial that reflected that the average ROEs allowed to 129 electrical companies in rate cases between 2012 and 2015 was 9.88 percent. For vertically integrated electrical utilities (such as KCP&L), the ROE average was 10.10 percent in 2012 and decreased every year through Chriss’ testimony in 2015 to 9.71 percent. Although KCP&L argues in its reply brief that the Commission did not cite this evidence in its orders, the Judicial Review Act directs this court to consider any evidence in the record “cited by any party that detracts ... as well as . . . supports such finding.” K.S.A. 2015 Supp. 77-621(d).
In addition, Gatewood testified that it was undisputed that since KCP&Ls prior rate case (764 Docket) filed at the end of 2011, die interest rates on corporate debt dropped from 5.2 to around 4.8 percent while dividends from his proxy groups dropped from 4.45 in 2011 to 3.80 percent in the current docket. On cross-examination at the hearing, Gatewood acknowledged that a FINRA report—issued after the rate case and his initial testimony were filed-—showed that KCP&Ls bond yield had increased to 4.461 percent. After 5 years of decreasing, indeed, the bond yield had increased one quarter. Gatewood testified that the rates fluctuate consistently throughout a rate case and that is well-known by tire Commission. There were no indications during cross-examination that interest rates on KCP&L’s debt had changed.
Finally, KCP&L challenges Gatewoods testimony regarding long-term growth and his use of gradualism in his analysis. Gate-wood testified that he did not come across any substantial research that would lead him to believe that growth rates and returns earned in the past are necessarily representative of what investors expected in the future. Gatewood relied upon growth projections by a number of entities for the short term and long term. Gatewood also testified that FERC concluded that using long-term nGDP was the proper basis to estimate long-term growth for interstate pipeline and electric transmission companies.
As for gradualism, Gatewood admitted in cross-examination that his models included an ROE range including figures of less than 9 percent, even though Gatewood had recommended 9.2 percent in his testimony. Flowever, he ignored that portion of the model outcomes below 9.0 percent because he preferred to wait to see if current market conditions continued before he would recommend an ROE below 9.0 percent. Gatewood recognized that regulatory commissions are slow to recognize changes in capital markets, but if 2 to 3 years from now the capital markets remained low, he could see recommending an ROE below 9 percent. Despite his choice to use gradualism, Gatewood was comfortable with his inputs and believed his calculations were reasonable and reflected the realities of the marketplace.
KCP&L attacks Gatewoods gradualism approach by asserting it reflected an inadequate analysis. Significantly, KCP&L overlooks the fact that its own expert ignored the bottom third of the outcomes of his various calculations (the low mean figures) and made recommendations based solely on the high mean averages of his calculations, which all included flotation costs.
KCP&L further challenges the Commissions finding that He-vert erred in relying on a growth rate based on the average growth in the economy over the last 80 years. KCP&L also challenges the Commission’s finding that Hevert was not a credible witness because he failed to adjust his ROE after reducing his growth rate from 5.61 percent to 5.37 percent. KCP&L claims there was no evidence in the record that this “slight change” in the growth rate would have affected the ROE. However, this constitutes a 24 basis point reduction in the growth rate. Hevert previously testified that the growdr rate was a very important and weighty factor in an ROE calculation. KCP&L’s complaints that the Commissions rejection of 12 basis points in the ROE for flotation costs was arbitrary, while arguing that its expert’s failure to adjust for a 24 basis point reduction in the growth rate is insignificant, is disingenuous.
KCP&L also repeatedly challenges the Commission’s failure to give weight to Hevert’s Chart 3 (the ROE Chart) that listed the ROE established in recent regulatory rulings across the country in vertically integrated electrical utilities.
The Commission rejected this chart because it failed to take into account other rate mechanisms such as ECAs, TDCs, EERs and other interim rate changes permitted in Kansas. Those acronyms stand for energy cost adjustment, transmission delivery charges, and energy efficiency riders. These are pass-through mechanisms granted by the Commission that allow the utility to charge its customers for these costs by passing them through onto their bills. This means the utility can make these charges.without the need of asking for a new rate to be set. They are, however, subject to audit by the Commission. Some states do not allow such pass-through charges. Hevert’s chart did not indicate if those other states listed on the chart took into account such pass-through mechanisms.
KCP&L argues, however, that the Commission ignored Heverts rebuttal testimony that Kansas was rated only “average” by the Regulatory Research Associates (RRA) and his Schedule RBH-18 provided information regarding other regulatory commissions’ RRA rankings. However, that schedule failed to tie the proxy groups in Hevert’s ROE Chart to this RBH-18 to show how it would support his analysis. In addition, KCP&L’s arguments fail to account for Chriss’ evidence from an entity related to RRA which issued information showing an ongoing decline in ROEs in electrical companies, including vertically integrated companies such as KCP&L.
As in any case of battling experts, every witness was cross-examined with the minutiae of their calculations and “inputs” challenged. Both Hevert and Gatewood agreed that the growth rate was a key element in the DCF models and had a significant impact on the ROE determination; likewise, they agreed there was an element of subjectivity to selecting a growth due to the uncertainty about future earnings. Hevert admitted that the economic models used to determine ROEs are based on certain assumptions, which may be more or less applicable depending upon differing market conditions. He admitted the choice of economic models, the inputs into those models, the choice of proxy companies, and the interpretation of model results are based on “reasoned judgment.” He also admitted there was no “strict mathematical solution” when determining ROEs. Instead, the models used produce a range of results from which the ROE is estimated after a comprehensive review of relevant data and information. Calculating growth rates is an inherently uncertain endeavor and usually contested in rate calculations.
Our review of the record reveals that the Commission was confronted with deciding which expert estimation was closest to the mark. It had to consider the results of the application of data into sophisticated economic models. It had to answer for itself whether the inputs each expert used were appropriate. Were the proxy companies proper in number as well as qualities? Suffice it to say, the testimony of Gatewood and Woolridge supports the Commission s conclusions. Additionally, the Commission clearly gave its reasons for not giving Hevertis work more credit. In order to reverse this holding by the Commission, we would have to hold that Hevert s testimony was correct and the other two experts were wrong. Naturally, such a holding would require us to reweigh the evidence. This we cannot do. Thus, we hold the Commissions findings are supported by substantial competent evidence.
Based on this level of subjectivity and the Commissions expertise, KCP&Ls vigorous arguments simply boil down to a dispute about credibility on an issue requiring subjectivity and reasoned judgment. It is not this courts role to reweigh the credibility of witnesses. See K.S.A. 2015 Supp. 77-621(d). The Commission did that.
We turn to the flotation costs issue.
Flotation costs are the costs associated with the sale of new issu-ances of common stock. They include out-of-pocket expenditures for preparation, filing, underwriting, and other costs of stock issuance. KCP&L complains that the Commission changed its practice regarding the treatment of flotation costs without adequate notice to the company and failed to adequately explain the reasons for this change. Basically, KCP&L contends this sudden shift in Commission practice was a violation of Home Telephone Co. v. Kansas Corporation Comm’n, 31 Kan. App. 2d 1002, 76 P.3d 1071 (2003), rev. denied 277 Kan. 923 (2004).
The expert spoke about these costs.
Hevert testified that if a company is to attract adequate capital, a utility must be given the opportunity to recover prudently incurred flotation costs. Hevert testified that flotation costs are part of capital costs and should be treated as such, rather than simply as operating expenses. Because flotation costs are recovered over time, inclusion of flotation costs is appropriate—even if no new stock issuances are planned in the near future—in order to ensure the utility has the opportunity to earn its required rate of return for the future.
In Gatewood’s testimony, he reported that Staff did not support recovery of flotation costs through the ROE. Gatewood testified that KCP&L had not attempted to qualify the amount, if any, of unrecovered costs associated with its issuance of common equity. Gatewood testified that although KCP&L proposed to collect over $3.7 million as flotation costs, KCP&L did not quantify the effect of this element on the revenue requirement or why recovering this expense through the cost of equity was efficient; Gatewood believed it was not efficient yet the cost of equity was increased to recover associated income taxes. Gatewood opined it is simply more efficient for the company to track the actual flotation costs and include a pi'o forma adjustment to the test year operation to include those costs as an expense in the rate case.
CURBs expert, Woolridge, criticized Hevert’s adjustment for flotation costs and noted that Hevert made an upward adjustment of 0.12 percent to the equity cost rate to account for flotation costs. However, Hevert did not identify any test-year flotation costs for KCP&L. Because there are no identified flotation costs, there is no reason to increase KCP&L’s revenues for unspecified costs.
This case differs from Home Telephone.
The factual situation in this case significantly differs from that found in Home Telephone, 31 Kan. App. 2d 1002. In that case, both Staff and the utility were working under the assumption during the entire proceeding that the company’s income tax expense would be based upon tire taxes that would he assessed as if Home Telephone was a Subchapter C corporation. This assumption was made even though Home Telephone was actually a Subchapter S corporation whose shareholders paid income taxes, not the company. The Commission had established this practice even though one panel of this court had previously held that the income tax expenses for Subchapter S corporations should be tire lower of (1) the cost of income taxes the Subchapter S shareholders paid; or (2) the cost of income taxes that would be assessed if the utility was a Subchapter C corporation. Greeley Gas Co. v. Kansas Corporation Commission, 15 Kan. App. 2d 285, 807 P.2d 167 (1991).
Despite the Greeley Gas decision, it was undisputed that the Commission routinely used only the Subchapter C tax imputation (perhaps because it was consistently the lower of the two calculations). See Home Telephone, 31 Kan. App. 2d at 1006. In any event, the Commission never mentioned the Greeley Gas case, even after its initial order which requested tire company and Staff work together to obtain and provide necessary information to determine the correct imputed tax expense. 31 Kan. App. 2d at 1008. Again, Staff and Home Telephone worked together to determine an agreed Subchapter C income tax expense. In its final order, however, the Commission denied any income tax expense because Home Telephone had failed to provide full information on tire amount of income taxes from the Subchapter S shareholders, citing Greeley Gas for the first time. 31 Kan. App. 2d at 1008-09.
The panel in Home Telephone found that the Commission had initially relied on its long practice of relying on the income tax equivalent for a Subchapter C corporation. It failed to advise either Staff or Home Telephone that it required the type of information as stated in the Greeley Gas case until after its initial order was issued. Our court found that tire Commission’s last-minute change was arbitrary and capricious. 31 Kan. App. 2d at 1011-12. The panel found that the Commission was obligated to inform both Home Telephone and Staff that it would be deviating from its prior practice. 31 Kan. App. 2d at 1012.
In this case, KCP&L was put on notice as soon as Gatewood filed his testimony that Staff was challenging the inclusion of flotation costs in the ROE unless KCP&L established how much of its costs from the 2006 and 2009 issuances remained unrecovered. It was also aware that Staff was taking a position that flotation costs should not be included in the ROE as a matter of practice but should be treated as an expense in the revenue requirement calculation. KCP&L cross-examined Gatewood on this position, and he agreed that Staffs position on flotation costs was evolving.
While Hevert filed prefiled rebuttal testimony challenging the reasoning for treating flotation costs as part of ROE rather than an expense, KCP&L made no effort to provide financial details in response to Staffs assertion that they should be treated differently. KCP&L had ample opportunity to provide additional information to respond to Staffs assertions that since 2009, the ROE adjustment had more than paid off the flotation costs from 2006 and 2009.
Even though KCP&L contends that providing additional information could have been treated as an amendment to its application and, thus, delay the timelines in the rate case, it cites no prior Commission case where a company providing additional information in response to an opponents challenge has caused such a delay. Utility companies have consistently responded to data requests from Staff and intervenors in cases, as well as provided supplemental calculations in response to arguments made in the prefiled testimony of opponents without the Commission restarting the 240-day statutory rate case timeline.
Nationwide, there appears to be a recent trend in applications filed with public regulators for challenges to be made to the inclusion of flotation costs in ROEs. Some regulators have permitted an ROE adjustment, but that adjustment is amortized over a specific time period, rather than being allowed to be a perpetual cost. See In Re Potomac Electric Power Company, 314 PUR 4th 165, 205 (Md. PSC 2014). Some regulators have rejected ROE adjustments for flotation costs based upon claims of need for future capital, since it was unknown whether the capital would be raised by stock issuances or through other sources such as retained earnings. See In Re Southwestern Electric Power Company, 309 PUR 4th 116, 130, 139 (Tex. PUC 2013). Other regulators have allowed ROE adjustments only when the utility has established that its parent company’s stock issuances have directly benefitted the subsidiary. In Re The United Illuminating Company, 307 PUR 4th 1, 130 (Conn. PURA 2013). Still, another allows flotation cost adjustments in ROEs only if actual flotation costs are identified or new common stock issuances have occurred in the test year and the company has demonstrated that its stocks are trading at, or below, its book value. In Re Southern California Edison Company, 302 PUR 4th 312, 324 (Cal. PUC 2012).
Some advocates argue that flotation costs should be treated as a transaction cost, i.e., operating expense, rather than an adjustment to an ROE, similar to the manner in which bond expenses are measured. See In Re Connecticut Natural Gas Corporation, 310 PUR 4th 327, 403 (Conn. PURA 2014); In Re Potomac Electric Power Company, 314 PUR 4th at 203. It has also been asserted that flotation costs should be recovered only if it is shown that the market-to-book ratios established that the new stock will trade for below book value. Connecticut Natural Gas Corporation, 310 PUR 4th at 403.
At least one state commission has adopted the concept that flotation costs were more accurately classified as an expense. See In Re SourceGas Distribution LLC, 297 PUR 4th 529, 548 (Neb. PSC 2012). The Nebraska Commission rejected making an adjustment to the ROE, finding that utilities should not receive a perpetual return on a one-time or intermittently occurring cost. Likewise, it found that ratepayers should not be required to compensate shareholders for any potential, unsubstantiated downward pressure on their stock prices due to issuances of new stock. 297 PUR 4th at 548.
How to treat these expenses is a matter of policy to be determined by the Commission and not this court.
In tins case, KCP&L had ample opportunity to provide data and testimony in response to Staffs proposed changes; therefore, the facts in this case do not rise to the level of the “moving target” that occurred in Home Telephone. See Home Telephone, 31 Kan. App. 2d at 1010.
Finally, KCP&L argues that the Commission has failed to adequately explain the basis for its change in treating flotation costs. Indeed, the Commission s explanation was sparse on this point. Basically, it merely relied on KCP&Ls failure to identify the amount of unrecovered costs and reiterated its conclusions that a pro for-ma adjustment to test-year operations to include actual costs was a more sensible way in which to recover such costs. In its order on reconsideration, the Commission merely rejected KCP&L’s re-fiance on Home Telephone and made no other rationalizations for the altered course.
The Commission argues in its brief that it did not adopt a new policy on flotation costs because it did not have a prior policy on such costs. Despite this assertion, Gatewood clearly testified that Staffs view of flotation costs had changed and that flotation costs had been included in certain cases in the past, including KCP&Ls prior cases. On appeal, the Commission argues that while Staff changed its position, the Commission itself had no established practice.
While these arguments are interesting, we must remember the context. The overall rate of return adopted by the Commission was supported by substantial evidence from the record as a whole and was not arbitrary or capricious. Heverts ROE recommendation relied only on the high mean of his various ROE calculations. Fleverts low mean range using the DCF model—8.32 to 8.57 percent—was within the range recommended by Woolridge. The mean from his DCF analysis was close to that recommended by Gatewood: 9.36 to 9.62 percent. Even Heverts multi-stage DCF analysis—using his high estimated growth rate—did not justify an increase in the 9.5 percent awarded in the prior docket; it produced a low mean range for an ROE of 9.53 to 9.79 percent. What is even more significant is that all of Heverts calculations included an upward adjustment for flotation costs. Thus, even if the Commission’s actions were arbitrary in any shift regarding the treatment of flotation costs, the ultimate ROE adopted was close to Heverts low mean ROE calculations that included flotation costs.
The Commissions decision on KCPirL’s ROE was not arbitrary or capricious.
On this point, we are mindful of our judicial task. We must evaluate the overall rate order in determining whether it is reasonable and provides KCP&L with the opportunity (not a guarantee) to earn sufficient funds, if it operates reásonably and efficiently, to pay its operating costs and earn a sufficient return on its rate base to remain financially stable. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 58-59, 386 P.2d 515 (1963). The court must avoid the risk of converting what should be an overall review of the total rate to a narrow lens isolating only one or two issues and ignoring the Commissions aggregate decision. See Citizen Utility Ratepayer Bd. v. Kansas Corporation Comm'n, 47 Kan. App. 2d 1112, 1134-35, 284 P.3d 348 (2012).
The United States Constitution prohibits legislatures or their surrogates, the regulatory commissions, from determining rates for public utilities that are “confiscatory.” Bluefield Co. v. Pub. Serv. Comm., 262 U.S. 679, 690, 43 S. Ct. 675, 67 L. Ed. 1176 (1923). Still, in Bluejield, the Supreme Court recognized the level of discretion and judgment given to the regulatory agency.
“What annual rate will constitute just compensation depends upon many circumstances and must be determined by the exercise of a fair and enlightened judgment, having regard to all relevant facts. A public utility is entitled to such rates as will permit it to earn a return on the value of the property which it employs for the convenience of the public equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties; but it has no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures. The return should be reasonably sufficient to assure confidence in the financial soundness of the utility and should be adequate, under efficient and economical management, to maintain and support its credit and enable it to raise the money necessary for the proper discharge of its public duties. A rate of return may be reasonable at one time and become too high or too low by changes affecting opportunities for investment, the money market and business conditions generally.” (Emphasis added.) Bluefield Co., 262 U.S. at 692-93.
KCP&L cites Bluejield Co. in support of its claim that the ROE granted by the Commission is unreasonably low. The Kansas Supreme Court recognized and adopted these standards in Southwestern Bell Tel. Co., 192 Kan. at 58-59; Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 488-89, 720 P.2d 1063 (1986). KCP&L limits its focus on the ROE/flotation costs issues. The utility fails to explain how these decisions, taken together with the Commissions adoption of the settlement agreements and rulings on other contested issues, renders inadequate the overall rate set by the Commission. The rate approved by the Commission here is hardly confiscatory.
We note that KCP&L initially requested a rate increase of $67.3 million overall. Staff recommended an increase of $44 million, and CURB recommended just under $17 million. Prior to the hearing, the Commission approved a unanimous partial settlement agreement that provided for a partial rate based finding of $2,114,033,286 subject to contested issues of unrecovered reserve for AMR Meters and for fossil fuel inventory issues.
In addition, it is clear that tire approved partial settlement agreement made several other adjustments requested by KCP&L. The Commission adopted KCP&Ls requested depreciation rates, approved decommissioning cost accruals relating to the Wolf Creek nuclear plant, and allowed amortization for various costs, including deferred depreciation of the La Cygne facility. The Commission included rate case expenses not to exceed $1.83 million to KCP&Ls operating expenses and gave KCP&L permission to file an abbreviated rate case under K.A.R. 82-l-231(b)(3) within 14 months after the order in this case to address various issues regarding various costs relating to the La Cygne and Wolf Creek facilities.
The Commission further approved a Transmission Delivery Charge rider with an estimated annual value of over $33 million and adopted relevant changes to KCP&Ls Energy Cost Adjustment rider. These two permit the company to pass through its changing costs of transmission and energy without having to seek new tariffs or rate proceedings.
Finally, the Commission approved a Critical Infrastructure Protection (CIP)/Cybersecurity Tracker that allows KCP&L to include carrying costs for complying with federal oversight standards mandatory for the security of the electric grid and critical infrastructures. The order also permits KCP&L to track these ongoing costs, not yet known, for review in the next rate case.
Even with all of these pass-through mechanisms that allows KCP&L to minimize its risk, it still claims the ROE is inadequate. KCP&Ls own experts calculations belie that assertion. Heverts ultimate recommendation essentially relied only on the high mean of his various ROE calculations. Heverts low mean range using the DCF model—8.32 to 8.57 percent—was within the range recommended by Woohidge. The mean from his DCF analysis was close to that recommended by Gatewood: 9.36 to 9.62 percent. Even Heverts multi-stage DCF analysis—using his high estimated growth rate—did not justify an increase in the 9.5 percent awarded in the prior docket; it produced a low mean range for ROE of 9.53 to 9.79 percent. What is even more significant is that all of Hevert s calculations included an upward adjustment for flotation costs.
In summary, all three experts used the same general well-recognized economic models for estimating the ROE. Their opinions simply differed. Pleverts proxy group of companies was much smaller, whereas the larger proxy groups selected by Gatewood and Woohidge arguably could be viewed as providing a broader picture of appropriate ROEs. Hevert selected growth rates based upon information from private investment analysts, ignoring estimates from the Social Security Administration, the Energy Information Agency, and other sources. Although KCP&L and Hevert challenged the inputs and assumptions relied upon, the Commission’s decision is not arbitrary or capricious.
In our review of the record, we hold that the Commission has taken a middle-ground approach in determining this ROE multiplier, including its treatment of flotation costs. We cannot fault the Commission for being reasonable.
We affirm the Kansas Corporation Commission.
Figures include upward adjustment for flotation costs.
Figures include upward adjustment for flotation costs.
Based upon forecasted growth data
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The opinion of the court was delivered by
BILES, J.:
Richard D. Pianalto appeals from his conviction for driving while under the influence of alcohol, arguing the evidence of that offense was the product of an illegal traffic stop. Pianalto claims the officer who initiated the stop was mistaken about the applicable speed limit because a traffic sign normally posting the limit had been knocked to the ground. Pianalto contends the speed limit increased as a matter of law on the seemingly unposted roadway, so the officer had no basis to pull Pianalto over for speeding. We affirm his conviction.
Factual and Procedural Background
Early on the morning of January 1, 2012, an Atwood police officer observed Pianalto’s vehicle traveling westbound on North Lake Road within the city limits. Using his radar gun, the officer checked Pianalto’s speed as their vehicles passed each other. This instrument showed Pianalto traveling 28 miles per hour. The officer, a lifelong city resident, believed there was a posted 20 miles per hour speed limit on North Lake Road, so the officer activated his emergency equipment to initiate a traffic stop for a speeding violation. The officer was unaware the speed limit sign at this location had been knocked down.
During the stop, the officer developed suspicion that Pianalto was intoxicated. He administered field sobriety tests and arrested Pianalto. An evidentiary breath test showed Pianalto had a breath alcohol concentration of .148 grams of alcohol per 210 liters of breath, which is well in excess of the .08 specified by statute. See K.S.A. 2011 Supp. 8-1567. Pianalto was convicted in Atwood Municipal Court of DUI and speeding.
Pianalto appealed both convictions for a trial de novo in Rawlins County District Court, where he challenged whether the officer had reasonable suspicion for the traffic stop based on the fallen traffic sign. He argued that unless otherwise marked, the speed limit automatically increased to 30 miles per hour at the place of the stop in accordance with K.S.A. 2011 Supp. 8-1558, so Pianalto’s 28 miles per hour speed did not provide the reasonable suspicion to initiate a stop for speeding. The district court denied Pianalto’s motion to suppress in a written order. It stated in part:
“1. The facts are not at issue. Simply stated, the arresting officer initiated a traffic stop of [Pianalto] for travelling 28 mph in what the officer mistakenly believed was a 20 mph zone based upon his use of a radar gun. The zone was and had for more years than anyone knew been a 20 mph zone but because the 20 mph speed limit sign had been knocked down the argument is that the speed limit reverted to 30 mph. The arresting officer did not have knowledge that the sign had been knocked down therefore making his mistake one of fact, not one of law. Had the officer known the sign had been knocked down then the argument could be made that his mistake was one of law, i.e.[,] did the speed limit revert to 30 mph.
“2. Although an argument could be made, and in fact was, that the speed limit did not increase to 30 mph based upon the speed limit sign having been knocked down it is not necessary to address that issue as this matter can be decided on the mistake of fact issue alone.”
The district court then concluded a reasonable mistake of fact could not invalidate a traffic stop when the officer had a “reasonably articulable” suspicion the motorist was speeding and ruled that the evidence against Pianalto would not be suppressed. The court did not explicitly conclude the officer had reasonable suspicion to initiate the stop despite the mistake, but that is implicit.
After the motion to suppress was denied, Pianalto stipulated he was operating his vehicle with a breath alcohol content above the legal limit. The district court found him guilty of driving under the influence of alcohol and imposed a sentence. The district court made no findings and entered no judgment as to tire speeding violation. Pianalto timely appealed.
The Court of Appeals affirmed the DUI conviction. City of Atwood v. Pianalto, No. 109,796, 2014 WL 642203, at *5 (Kan. App. 2014) (unpublished opinion). In doing so, the panel assumed the speed limit reverted to 30 miles per hour under K.S.A. 2013 Supp. 8-1558 when the sign was knocked down. 2014 WL 642203, at *3. Next, the panel agreed the officer’s error about the speed limit was a reasonable mistake of fact, writing:
“Had [the officer] known that the speed limit sign was down but was unaware that tills fact caused the speed limit to revert to 30 miles per hour, this situation would have constituted a mistake of law, rendering the traffic stop invalid. But here the record clearly indicates that [the officer] reasonably believed there was still a speed limit sign in place at the Highway 25 entrance to North Lake Road imposing a 20 miles per hour speed limit. [The officer] was mistaken factually that the 20 miles per hour speed limit sign was still in place.” 2014 WL 642203, at °4.
Finally, addressing an argument raised by Pianalto that another officer s earlier knowledge of the downed sign should be imputed to the arresting officer, the panel held the issue was not preserved because Pianalto failed to raise it in tlie district court. Nonetheless, the panel continued, the arresting officer could be charged with the other officer s knowledge only if he was acting on the other officer s directions. 2014 WL 642203, at *4-5.
Pianalto petitioned for review, which this court granted. Jurisdiction is proper. See K.S.A. 60-2101(b) (review of Court of Appeals decisions).
Analysis
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” See also Kan. Const. Bill of Rights § 15. A traffic stop is considered a seizure of the driver. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). To comply with the Fourth Amendment, the officer conducting the stop “must ‘ “have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.” [Citation omitted.]’ ” 284 Kan. at 773.
Reasonable suspicion is a lower standard than probable cause. “What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer.” State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). In determining whether reasonable suspicion exists, the court must:
“ ‘ “[J]udge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] ‘Our task ... is to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We malee 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.’ ” ’ [Citations omitted.]” 296 Kan. at 487.
We must decide whether the panel erred when it affirmed the district court’s denial of Pianalto’s motion to suppress. Our answer turns on a single issue: whether the arresting officer’s allegedly mistaken conclusion about the posted governing speed limit was objectively reasonable. If so, when combined with the officer’s un contested observation that Pianalto was driving 28 miles per hour, the officer would have had reasonable suspicion to initiate a lawful traffic stop.
Standard of review
A trial court’s decision on a motion to suppress is reviewed by an appellate court using a bifurcated standard. The trial court’s factual findings are reviewed for substantial competent evidence. An appellate court does not reweigh the evidence, assess witness credibility, or resolve conflicting evidence. The district court’s ultimate legal conclusion regarding the suppression of evidence is reviewed de novo. If the material facts underlying the trial court’s decision are not in dispute, whether to suppress evidence is a question of law subject to de novo review. Martinez, 296 Kan. at 485.
Discussion
The parties have hotly disputed whether we are dealing with a mistake of fact or mistake of law. Pianalto argues the panel erred when it concluded the arresting officer made a mistake of fact, stating “[t]he failure of the officer to know that [Pianalto] could not be charged with violating a speed limit when he was not properly notified constitutes a mistake of law and renders the initial stop invalid.” The City argues the arresting officer made a mistake of fact because he did not know the sign had been knocked down. This distinction previously impacted the standard governing the remaining analysis.
Prior to the United States Supreme Court’s recent decision in Heien v. North Carolina, 574 U.S _, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), a majority of federal circuits to consider the issue held that, while reasonable suspicion could be founded upon an officer’s reasonable mistake of fact, it could not be based upon an officer’s mistake of law—no matter how reasonable. See, e.g., United States v. Nicholson, 721 F.3d 1236, 1242 (10th Cir. 2013); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). And our court had adopted the majority position, holding “an officer’s mistake of law alone can render a traffic stop violative of the Fourth Amendment and § 15 of the Bill of Rights.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 639, 176 P.3d 938 (2008).
But in Heien, the United States Supreme Court rejected the majority rule and instead held that reasonable suspicion could also arise based on an officers reasonable mistake of law. 135 S. Ct. at 536. The facts involved a police officer stopping a vehicle with only one brake light working, which led to a vehicle search and the discovery of cocaine. In the ensuing fight over suppression of the drug evidence, the state trial and appellate courts took conflicting views. In its holding, the Court majority reasoned:
“ ‘[T]he ultimate touchstone of the Fourth Amendment is “reasonableness.’ ” Riley v. California, 573 U.S _, _, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014) (some internal quotation marks omitted). To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’ Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). We have recognized that searches and seizures based on mistakes of fact can be reasonable. The warrantless search of a home, for instance, is reasonable if undertaken with tire consent of a resident, and remains lawful when officers obtain die consent of someone who reasonably appears to be but is not in fact a resident. See Illinois v. Rodriguez, 497 U.S. 177, 183-186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. See Hill v. California, 401 U.S. 797, 802-805, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971). The limit is that ‘the mistakes must be those of reasonable men.’ Brinegar, supra, at 176, 69 S. Ct. 1302.
“But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of die facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Wliedier the facts turn out to be not what was tiiought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of die law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.” Heien, 135 S. Ct. at 536.
Since Heien was handed down after the panel’s decision in Pian-alto’s case we ordered supplemental briefing to address Heien, which the parties filed prior to oral arguments.
We will proceed by considering the following: (1) whether to characterize the officer s mistake as one of law or fact; and (2) whether that mistake was objectively reasonable. In the end, we agree with the district court and the Court of Appeals that the officer made a mistake of fact—-although this is a close question. We further conclude this mistake was objectively reasonable and affirm Pianalto’s convictions for DUI and speeding.
The officer made a mistake of fact.
After Heien, some might conclude it is unnecessaiy to characterize the officer’s mistake as being one of law or fact; but the subsequent analysis as to whether the mistake was objectively reasonable can be affected by the mistake’s characterization, so we consider that question as a threshold matter. The principal cases-relied upon by the parties as to what type of mistake is involved are Martin, 285 Kan. at 637; State v. Miller, 49 Kan. App. 2d 491, 308 P.3d 24 (2013); and State v. Knight, 33 Kan. App. 2d 325, 104 P.3d 403 (2004).
Martin and Knight involved mistakes of law. In Martin, an officer pulled a vehicle over when one of its three stop lamps malfunctioned. The traffic ordinance at issue provided that a vehicle must have two or more stop lamps. We concluded the officer made a mistake of law by “misunderst[anding] and misapplying] tire ordinance. Two functioning rear brake ‘lamps’ were sufficient under the law.” 285 Kan. at 637. Martin resolved a conflict among Court of Appeals panels and joined Kansas with those jurisdictions in which reasonable suspicion could not be based on an officer’s mistake of law. See 285 Kan. at 638-39 (approving rationale in Chan-thasouxat and Tenth Circuit cases). In Knight, the officer misapplied an ordinance about the use of turn signals when stopping a driver for failing to signal while turning onto a public street from a private drive.
But in Miller, a Court of Appeals panel held that an officer who believed his fellow officers were blocking a roadway made a mistake of fact when he pulled over a driver for disobeying their orders, not knowing they had been briefly called away from their post. In deciding this was a mistake of fact, the panel reasoned the officer “wasn’t mistaken that it would have been illegal for [defendant] to go around those officers; he was mistaken factually that those officers were still in place.” 49 Kan. App. 2d at 496.
The panel in Pianalto’s case determined the facts were more similar, to Miller and distinguishable from Martin and Knight, reasoning the officer had not misconstrued the legal effect of the downed sign but was simply unaware that it was down. Pianalto, 2014 WL 642203, at *4. We agree. But we acknowledge this is a close question, and admittedly the facts have a flavor of both a mistake of fact and one of law.
In State v. McCarthy, 133 Idaho 119, 982 P.2d 954 (Ct. App. 1999), the Idaho Court of Appeals addressed a situation similar to Pianalto’s case. In McCarthy, an officer observed defendant pass through an intersection at approximately 45 miles per hour. The officer mistakenly believed a 25 miles per hour speed limit sign was posted before the intersection, but it was actually posted after tire intersection. The parties disputed whether the mistake was one of fact or law. The court reasoned:
"We think . . . that the mistake involved here was one of both fact and law. The officer was mistaken about Üiefact of the speed limit sign’s location and about the law regarding the speed limit applicable on [the roadway]. These two mistakes are inextricably connected, for the placement of the stop sign determined the applicable speed limit.” 133 Idaho at 124.
The court concluded it was unnecessary to determine whether it would permit reasonable suspicion to arise from a reasonable mistake of law because no evidence had been presented to demonstrate the officer’s mistake was a reasonable one. 133 Idaho at 125.
Having concluded this was a mistake of fact, we turn to whether that mistake was objectively reasonable. Heien, 135 S. Ct. at 539. In mistake of fact cases, courts consider the “reasonableness of an officer’s actions using an ‘objective standard’ that takes the ‘totality of the circumstances’ and the ‘information available’ to the officer into account[,]” disregarding the officer’s “ ‘actual motivations or subjective beliefs and intentions.’ ” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009). “That an officer’s suspicions may prove unfounded does not vitiate the lawfulness of a stop . . . .” 557 F.3d at 1134. “[Mistakes of fact are rarely fatal to an officer’s reasonable, articulable belief that an individual was violating a traffic ordinance at the time of a stop . . . United States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006).
Pianalto argues the mistake was not objectively reasonable because, for various reasons, he believes the officer knew or should have known about the sign having been knocked down: The officer would have driven past the downed sign prior to the stop; another officer had reported the downed sign to a dispatch operator prior to the stop; and that other officer was present at the traffic stop. And Pianalto further argues the other officer s knowledge should be imputed to the arresting officer. But these claims are not borne out by the record.
First, the arresting officer testified he was driving in a direction away from the downed sign when he pulled Pianalto over and did not testify that he had passed or noticed the downed sign at any point prior to the stop, and the district court did not find that he had. Second, although Pianalto testified a second police officer (who knew the sign had been knocked down) arrived at the stop after he had been pulled over, the record is clear that the officer who initiated the stop did so before the other officer arrived on the scene. There was no evidence any person who knew the sign had been knocked down shared that information with the arresting officer. Finally, Pianalto’s assertion that he raised his imputed-knowledge argument in the district court is belied by the record. Nowhere in his oral arguments or brief to the district court did he make this claim. The panel correctly found this imputed-knowledge argument was never made to the district court. Pianalto, 2014 WL 642203, at *4-5.
In this case, the officer’s reliance on the false, but normally true, fact that a speed limit sign was in place was objectively reasonable. The district court found the speed limit had been 20 miles per hour on North Lake Road for “more years than anyone knew.” And the evidence established that signs displaying the 20 miles per hour limit are normally in place on both ends of the road. Nothing in the record indicates the officer had any reason to doubt the continuing existence of the normal condition.
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Bruns, J.:
This is an interlocutory appeal following the district court’s denial of a motion to dismiss a 42 U.S.C. § 1983 (2012) claim filed by a former state employee against two other state employees in their individual capacities. In August 2013, Margaret M. Quidachay sued James Heimgartner—the warden at the El Dorado Correctional Facility (EDCF)—and Debbie Bratton—the human resources manager at EDCF—as well as several other defendants. Although the district court dismissed the other claims asserted against Heimgartner and Bratton, it denied their motion to dismiss the 42 U.S.C. § 1983 claim. Moreover, the district court declined to grant Heimgartner and Bratton qualified immunity. Because we conclude that Quidachay has failed to state a 42 U.S.C. § 1983 claim against Heimgartner and Bratton in their individual capacities, we reverse the district court’s decision.
Facts
Quidachay was employed at EDCF as a corrections officer. On May 27, 2012, she requested accommodation of “post assignment next to a bathroom” because she suffers from Crohn’s disease. According to Quidachay, EDCF declined to grant her request. Subsequently, on July 24, 2012, Heimgartner—in his capacity as warden of EDCF—sent a letter to Quidachay advising her that she would be terminated because of her inability to perform the essential duties of her job. In response, Quidachay filed an administrative complaint with the Kansas Civil Service Board. Prior to a hearing, however, Quidachay and EDCF reached an agreement which provided that certain information about her ability to perform her job would be removed from her personnel file, that she would tender her resignation effective July 30, 2012, and that her EDCF records would reflect that she is eligible for rehire.
On May 24, 2013, Quidachay filed a complaint with the Equal Employment Opportunity Commission (EEOC). After receiving a Right to Sue letter from the EEOC, Quidachay filed a petition in district court against Heimgartner, Bratton, and several other defendants. Her petition asserted violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 (2012) et seq.; discrimination under 42 U.S.C. § 1983 and the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.; and violations of the Kansas Wage Payment Act, K.S.A. 44-313 et seq. On December 3, 2013, Quidachay filed an amended petition, in which she added the State of Kansas and the Secretary of Corrections as defendants. She also expanded upon her Kansas Wage Payment Act claim and added a collective action under the Fair Labor Standards Act, 29 U.S.C. § 216(b) (2012).
On February 25, 2014, the district court entered an order dismissing KDOC as a party and dismissing Quidachay s claim under the Kansas Act against Discrimination. Subsequently, on March 21,2014, Heimgartner and Bratton—as well as the other remaining defendants—filed a motion to dismiss. After several substantial briefings, a hearing was held on the motion on May 20, 2014. At the hearing, the district court granted Quidachay’s oral motion to amend to include a claim against Heimgartner as a defendant in his official capacity in addition to his individual capacity.
On June 23, 2014, the district court held another hearing to announce its rulings on pending motions, and a journal entry was filed about 2 weeks later. In the journal entry, the district court dismissed various claims, including the ADA claims against the defendants in their individual capacities. But the district court rejected Heimgartner and Bratton’s request to dismiss tire § 1983 claim arising out of the alleged ADA violation and asserted against them in their individual capacities.
In denying the motion to dismiss the § 1983 claim, the district court found:
“3. Plaintiff states a claim against Bratton and Heimgartner for violation of 42 U.S.C. § 1983 for deprivation of rights under the ADA. The court finds that though the ADA has a remedial scheme, that scheme is not available to this Plaintiff against these Defendants and so she has available a § 1983 claim.
“4. Defendants Bratton and Heimgartner are not entitled to qualified immunity for § 1983 disability discrimination because the right to be free of disability discrimination, which includes the right to have reasonable accommodation, is clearly established.”
Subsequently, this court granted Heimgartner and Bratton’s application for permission to take an interlocutory appeal from the district court’s decision not to dismiss the § 1983 claim asserted against them in their individual capacities.
Analysis
Issue Presented and Standard of Review
Heimgartner and Bratton contend that the district court erred in denying their motion to dismiss the 42 U.S.C. §1983 claim filed against them in their individual capacities. Specifically, Heimgart-ner and Bratton argue that because Quidachay could not state a claim for damages for violation of die ADA against them in their individual capacities, she cannot make the same claim actionable by casting it as a §1983 claim. In response, Quidachay argues that she should be allowed to vindicate her rights under the ADA against Heimgartner and Bratton in their individual capacities through 42 U.S.C. §1983. The parties agree, however, that the determination of whether a district court erred when it considered a motion to dismiss for failure to state a claim involves a question of law subject to an unlimited standard of review. See Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).
Failure to Dismiss $ 1983 Claim
42 U.S.C. § 1983 states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by die Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress
It is important to recognize that 42 U.S.C. § 1983 “is not a source of rights, but rather a method for vindicating other federal rights conferred elsewhere.” Purvis v. Williams, 276 Kan. 182, Syl. ¶ 13, 73 P.3d 740 (2003). In order to state a valid claim under § 1983, “a petition must allege two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or federal law.” 276 Kan. 182, Syl. ¶ 13.
Here, Quidachay asserts that she has Crohn’s disease, which “substantially limited one or more of her major life functions, and [she] is a qualified individual with a disability as a result.” Quida-chay further asserts that while she was employed as a corrections officer at EDCF, her request to her employer to be given a post assignment next to a bathroom because of her Crohn’s disease was denied. As a result, Quidachay argues that her employer intentionally discriminated against her “by failing to accommodate her disability, by terminating her employment, and in retaliating against her by refusing to reinstate her employment.”
Specific to Heimgartner and Bratton, Quidachay asserts that they intentionally discriminated against her in carrying out their duties on behalf of EDCF. She also asserts that their actions “deprived [her] of rights protected by the Equal Protection Clause to the Fourteenth Amendment of the Constitution and the Americans with Disabilities Act.” Although Quidachay has acknowledged that she is not pursuing an Equal Protection claim separate from her claim under the ADA, she seeks a judgment “against Defendants Heimgaitner and Bratton, in their individual capacities, for actual damages, economic losses, compensatory damages, punitive damages as allowed by law, attorneys fees, all appropriate interest and costs, and any other relief which the Court deems just and equitable.”
The district court ruled that Quidachay does not have a cause of action under the ADA against Heimgartner and Bratton in their individual capacities because the Act does not provide personal liability to those who are not employers. See Butler v. City of Prairie Village, Kan., 172 F.3d 736, 744 (10th Cir. 1999). Although this ruling is not challenged by Quidachay, she argues that Heimgartner and Bratton should be held personally hable under § 1983 because they allegedly acted under color of state law when they refused her accommodation request and terminated her in retaliation for ex ercising her rights under the ADA. On the other hand, Heimgart-ner and Bratton argue that because Quidachay had no legal right to assert an ADA claim against them in their individual capacities, she should not be allowed to use § 1983 to do so.
In Purvis, a former employee of the Kansas Department of Wildlife and Parks brought an employment discrimination suit against department officials in their individual and official capacities. The former employee claimed that in terminating his employment, the defendants “(1) violated 29 U.S.C. § 794 (2000) of die federal Rehabilitation Act; (2) violated federal civil rights law under 42 U.S.C. § 1983 (2000); and (3) discharged him in retaliation for exercising his rights under the Kansas Civil Service System and for exercising rights afforded to handicapped individuals.” 276 Kan. at 185. The Kansas Supreme Court, however, determined that the former employee failed to state a claim under the Rehabilitation Act against the department officials in their individual capacities because they did not meet the definition of a “program or activity” under the Act. 276 Kan. 182, Syl. ¶ 6.
The Kansas Supreme Court determined in Purvis that the dismissal of the former employee’s 42 U.S.C. § 1983 claim for violation of the Rehabilitation Act against the department officials in their individual capacities was appropriate. 276 Kan. at 198-99. In doing so, our Supreme Court explained that “[a] plaintiff alleging a violation of a federal statute is permitted to sue under § 1983 unless (1) the statute does not create enforceable rights, privileges, or immunities within the meaning of § 1983; or (2) Congress foreclosed such enforcement of the statute in the enactment itself.” 276 Kan. at 198-99 (citing Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S. Ct. 2510, 110 L. Ed. 2d 455 [1990]). Because the Rehabilitation Act only created an enforceable right to bring a lawsuit against a “program or activity” for discrimination and a government official in their individual capacity is not either a program or an activity, our Supreme Court concluded that the former employee “had no enforceable right under the Rehabilitation Act to vindicate under a § 1983 claim.” Purvis, 276 Kan. at 199.
Although Purvis addressed a claim under the Rehabilitation Act that preceded the ADA, we find its rationale for the decision to be equally applicable to the present case. Similar to our Supreme Court’s conclusion in Purvis, the Tenth Circuit Court of Appeals has found that “the ADA precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statutoiy definition.” Butler, 172 F.3d at 744. In Butler, the Tenth Circuit expressly held that “the individual defendants named in this action may not be held liable for discrimination or retaliation in violation of the ADA.” (Emphasis added.) 172 F.3d at 744.
Additionally, in Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), which was cited by the Kansas Supreme Court in Purvis, the Ninth Circuit Court of Appeals held that a plaintiff cannot bring a § 1983 claim against individuals alleging ADA violations as constitutional violations. The Vinson court reasoned that a “ ‘comprehensive remedial scheme for the enforcement of a statutory right creates a presumption that Congress intended to foreclose resort to more general remedial schemes to vindicate that right.’ ” 288 F.3d at 1155 (citing Lollar v. Baker, 196 F.3d 603, 609 [5th Cir. 1999]).
As the United States Supreme Court has held, Congress may foreclose a remedy under 42 U.S.C. § 1983 either “expressly . . . or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Blessing v. Freestone, 520 U.S. 329, 341, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) (citing Livadas v. Bradshaw, 512 U.S. 107, 133, 114 S. Ct. 2068, 129 L. Ed. 2d 93 [1994]). As numerous federal courts have found, we find that the ADA’s comprehensive enforcement scheme reflects the intent of Congress that the rights protected in the act are not to be enforced through § 1983. See Okwu v. McKim, 682 F.3d 841, 845 (9th Cir. 2012); Alshrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999); Lollar, 196 F.3d at 609-10; Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir. 1997). Thus, Quidachay may not use § 1983 to enforce her alleged ADA violations.
Conclusion
The district court appropriately dismissed Quidachay’s ADA claim because tire Act does not impose individual liability. But the district court should have also dismissed Quidachay’s § 1983 claim—arising out of an alleged violation of the ADA by Heim-gartner and Bratton in their individual capacities—for failure to state a claim upon which relief can be granted. In light of this ruling, we do not address the issue of qualified immunity.
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Arnold-Burger, J.:
While Diana K. Hilburn rode home with her husband, a truck owned and operated by Enerpipe, Ltd. (En-erpipe) rear-ended their car. The collision negatively impacted Hil-bum’s recovery from a recent back surgeiy, resulting in a second surgery and chronic pain. After a trial, a jury returned a verdict in the amount of $335,000 in total damages for Hilburn, most of which compensated for her noneconomic losses. Over Hilburn’s objection, the district court reduced her damages pursuant to the Kansas noneconomic loss damages statute, K.S.A. 60-19a02.
On appeal, Hilburn challenges the constitutionality of the statutory cap as applied to a negligence claim that does not involve medical malpractice. But first, she asks this court to conclude that the Supreme Court erred in its finding in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), that a quid pro quo test applies to claims under Section 5 of the Kansas Constitution. Because this court is duty bound to follow Supreme Court precedent absent some indication that the court is abandoning its prior position, Hilburn’s claim fails. Second, she asks us to limit the Miller ruling to medical malpractice claims because the Supreme Court relied on the insurance scheme established in the Health Care Provider Insurance Availability Act, an act that does not apply to other torts. Because the State has established a similar insurance scheme for injuries caused by the negligence of motor carriers and automobile drivers, we find tire rationale of tire Miller court controls our decision in this case. Accordingly, the decision of the district court is affirmed.
Factual and Procedural History
In November 2010, Hilburn underwent a lumbar fusion surgery to address degenerated disks in her back. This surgery required removing abnormal disks and inserting hardware to help fuse bone together. Nine days later, as she and her husband drove home from picking up a prescription in Wichita, Hilburn’s husband slowed their car in heavy traffic to accommodate a law enforcement vehicle that had pulled onto the median. The semi-truck behind them, driven by Jimmy Harris, attempted to stop but ended up rear-ending their car. Neither party disputes that Enerpipe owned the truck, employed Harris, and was operating as a motor carrier at the time of the accident.
After the collision, Hilburn suffered a large amount of pain and involuntary muscle contractions in her back. The impact loosened the hardware from her surgery and caused the bone fusion process to fail, which ultimately resulted in a second surgery. Even after this surgery, Hilburn suffered chronic back pain that required daily medication to manage.
Hilburn sued Enerpipe for negligence. Enerpipe admitted to many of her allegations, including that the accident “was caused by the negligent actions of [die] driver in operating [Enerpipe’s] vehicle,” and the case proceeded to jury trial on the issue of damages. After hearing all the evidence, the juiy returned a verdict of $335,000 in total damages for Hilbum; $301,509.14 constituted noneconomic loss damages.
Pursuant to our Kansas damages cap statute, K.S.A. 60-19a02, the district court reduced the amount of noneconomic loss damages to $250,000. Hilburn objected to the journal entry that memorialized application of the statute. At a hearing, she acknowledged that a recent Kansas Supreme Court case, Miller, 295 Kan. 636, had decided the issue, but she argued that because Miller concerned a medical malpractice plaintiff, her case differed dramatically. The district court disagreed, explaining:
“I do agree with the plaintiffs description that [the Supreme Court] did allow for the [reduction in noneconomic damages] because the legislature required ... mandatory malpractice insurance. Is this case distinguishable in the sense that this is not a medical malpractice case? Yes. However, the Court finds it may be a distinction without a difference. This is what I mean, is that while semis are regulated for insurance by federal law, if that federal law did not exist and supersede Kansas law of our Constitution die state law of mandatory insurance would also apply. The reason that is important is this Court’s finding diat the legislature did the same thing with car insurance, effectively, as they did with medical malpractice insurance diat Kansas requires ....
“For that reason, the Court finds the same analysis diat was in die Miller versus Johnson case applies here as well and that the legislature also equally has the right to limit noneconomic damages because they require and modify a common law obligation that did not exist regarding mandatory automobile insurance.”
The district court therefore denied Hilburns request and reduced tire award. Hilburn timely appealed.
Analysis
The sole issue in this case is whether the noneconomic damages cap contained at K.S.A. 60-19a02 is constitutional in the context of a negligence claim against an out-of-state commercial trucking company for injuries sustained in an automobile collision in Kansas. We begin with the statute being challenged. In pertinent part, the statute provides:
“(b) In any personal injury action, die total amount recoverable by each party from ail defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.
“(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneco-nomic loss which exceeds [$250,000], the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss.” K.S.A. 60-19a02.
“‘Noneconomic losses’” includes “‘claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.’” Miller, 295 Kan. at 644. In this case, the jury returned a verdict as to noneconomic damages of $301,509.14, and the district court reduced it to $250,000 per the statute and our Supreme Courts ruling in Miller. Because a review of the Miller case, which held that K.S.A. 60-19a02 is constitutional in the case of a medical malpractice claim, will help to better understand Hilburn’s arguments on appeal and guide the ultimate outcome of this case, we will next review the Supreme Court analysis in Miller.
We review Miller and the quid pro quo test it established.
In order to address some medical issues, Amy Miller consented to the removal of her right ovaiy. Although the documentation from her surgery indicated that her doctor had removed the correct ovary, she continued to suffer severe pain. An examination by another doctor revealed that Miller’s doctor had actually removed her left ovary instead of her right. Nonsurgical options to manage Miller’s pain failed, requiring a second surgery and removal of her remaining ovary.
Miller sued the original doctor for medical malpractice, and the jury “found the doctor completely at fault.” 295 Kan. at 642. The jury awarded Miller over $750,000 in damages, including $575,000 for her noneconomic loss. But in accordance with K.S.A. 60-19a02, the district court reduced the noneconomic loss damages to $250,000. Miller objected to this reduction.
Miller argued that K.S.A. 60-19a02 violated two of her rights under the Kansas Constitution Bill of Rights: her right to trial by jury (Section 5) and her right to remedy by due course of law (Section 18). Starting wife Miller’s right under Section 5, fee Supreme Court first observed feat although the constitution preserves fee “ ‘inviolate’ ” right of trial by jury, that preservation is limited to the right “as it historically existed at common law when our state’s constitution came into existence.” 295 Kan. at 647. But because the jury’s role at common law included the calculation of damages, the Supreme Court recognized that die statute indeed encroached on the right guaranteed by Section 5. 295 Kan. at 648.
But this encroachment alone did “not necessarily render K.S.A. 60-19a02 unconstitutional.” 295 Kan', at 648. Instead, the court needed to decide whether the legislature, which “may modify the common law in limited circumstances without violating Section 5,” had exceeded its authority. 295 Kan. at 648. After a lengthy analysis, the court determined that the correct test to determine whether the legislature overstepped its bounds was the same test used to address Section 18 challenges, commonly called the quid pro quo test. 295 Kan. at 648-53.
As explained by our Supreme Court, the quid pro quo test involves two steps. First, the court must decide “whether modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare.” 295 Kan. at 657. This analysis resembles the one “used to decide equal protection questions under the rational basis standard.” 295 Kan. at 657. Second, the court must “determine whether the legislature substituted an adequate statutory remedy for the modification to the individual right.” 295 Kan. at 657. This “more stringent” step requires there be “an adequate substitute remedy conferred on those individuals whose rights are adversely impacted.” 295 Kan. at 657.
While recognizing that it had previously upheld the damages cap in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990) (commonly referred to as Samsel IT), our Supreme Court elected against simply applying that rationale to Miller’s case. Miller, 295 Kan. at 657. Instead, the court found three reasons to reconsider its analysis: (1) Miller, a medical malpractice plaintiff, differed considerably from the car accident plaintiff in Samsel II; (2) the damages cap had remained the same in the 20-plus years since the earlier decision, possibly rendering it “inadequate over time or because of changed circumstances”; and (3) the Samsel II court erred in part of its analysis by reading too much into a portion of tire statute. Miller, 295 Kan. at 657-59.
With that in mind, the court moved on to the first quid pro quo consideration: whether the economic damages cap promoted the public welfare. However, the court quickly determined that “our caselaw generally settles the first step ... in favor of the statutes constitutionality.” 295 Kan. at 660. After all, prior cases from our Supreme Court had already established that “tire legislature’s expressed goals for the comprehensive legislation comprising the Health Care Insurance Provider Availability Act and the noneco-nomic damages cap have long been accepted by this court to carry a valid public interest objective.” 295 Kan. at 659.
Accordingly, the court moved to the second step, “determin[ing] whether the legislature substituted an adequate statutory remedy for the modification of the individual rights at issue.” 295 Kan. at 660. The court acknowledged that the deprivation caused by the noneconomic damages cap was significant when compared to those in other quid pro quo cases. That said, the court also observed that Miller had “not been left without any compensation for her loss as other plaintiffs in some of our other cases.” 295 Kan. at 660-61. Overall, our Supreme Court described die deprivation as “limited in scope” and determined this limitation to be “a substantial consideration when deciding how adequate the substitute remedy provided by the legislature must be.” 295 Kan. at 661.
Next, the court examined the Health Care Provider Insurance Availability Act, which mandates that healthcare providers in Kansas maintain a minimum level of professional liability insurance. 295 Kan. at 661. Specifically, each provider needed to maintain minimum coverage of at least $200,000 per claim, “subject to not less than a $600,000 annual aggregate for all claims made during the policy period.” K.S.A. 40-3402(a). Providers also needed to obtain excess coverage from the Health Care Stabilization Fund at a minimum of $100,000 with an aggregate limit of $300,000 per year in excess coverage for any one judgment or settlement. K.S.A. 2010 Supp. 40-3403(1); 295 Kan. at 661-62. The court determined that these provisions made “recovery of at least the statutory mínimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability.” 295 Kan. at 662. This protection, the court reasoned, separated Miller from “many other tort victims.” 295 Kan. at 662. Our Supreme Court further observed that, in other cases, it had determined that the remedy provided by the Act constituted an adequate substitute for their common-law counterparts. 295 Kan. at 662. Moreover, the court noted that “in the context of our workers compensation and no-fault automobile insurance caselaw, we have found the requirement of reliable sources of partial recovery for serious injuries to be significant in the quid pro quo analysis.” 295 Kan. at 662.
In conclusion, Millers access to “an available source of recovery of the statutorily mandated minimums” constituted “a significant, individualized substitute remedy” to the common-law rights the damages cap encroached on. 295 Kan. at 662. And after rejecting Millers claim that the legislatures failure to raise the cap from $250,000 “diluted the substitute remedy” enough to render the statute unconstitutional, our Supreme Court determined that K.S.A. 60-19a02 did not violate Sections 5 and 18 of the Kansas Constitution. 295 Kan. at 662-65.
When faced with a challenge to the constitutionality of a statute, our review is unlimited.
In light of our Kansas Supreme Court’s ruling in Miller, Hilburn presents two challenges to K.S.A. 60-19a02. First, she contends that our Kansas Supreme Court erred in applying the quid pro quo test to Section 5 challenges. Second, she argues that because she differs dramatically from a medical malpractice plaintiff, the rationale in Miller is inapplicable to her case. As a note, it is somewhat unclear from her brief whether her as-applied challenge is based on Section 5 or Section 18 of the Kansas Constitution. However, because the quid pro quo test applies to both sections, the distinction is ultimately immaterial.
As our Supreme Court observed in Miller, the question of whether a statute violates our Kansas Constitution is a question of law subject to unlimited review. 295 Kan. 636, Syl. ¶ 1. That said, courts are charged with presuming a statute’s constitutionality and resolving all doubts in favor of that statute’s validity. 295 Kan. 636, Syl. ¶ 1. Accordingly, “[a] statute must clearly violate the constitution before it may be struck down.” 295 Kan. 636, Syl. ¶ 1.
This court must use the quid pro quo test tohen considering the constitutionality ofKS.A. 60-19a02.
In her first argument, Hilburn “urges the court to abandon its finding in Miller that the quid pro quo test is applicable to Section 5 claims.” But even overlooking Hilbums confusion as to which court originated this test, this court cannot simply ignore Supreme Court precedent. In fact, this court is duty bound to follow Supreme Court precedent absent some indication that the court is abandoning its prior position. Farley v. Above Par Transportation, 50 Kan. App. 2d 866, 877, 334 P.3d 883 (2014), rev. denied 302 Kan. 1009 (2015). No such indication exists in this case. Accordingly, this court must use the quid pro quo test when considering the constitutionality of K.S.A. 60-19a02 as applied to Hilburn. So next we will discuss the application of the quid pro quo test to the facts of this case.
Applying the first step of the quid pro quo test to the instant case, the statute serves to promote the public interest and welfare.
As previously explained, the first step of the quid pro quo test asks “whether the modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare.” Miller, 295 Kan. at 657. In addressing this step, Hilburn argues that the damages cap cannot possibly be in tire public interest because it provides out-of-state companies like Enerpipe a windfall by limiting their liability in Kansas. As a preliminary note, and aside from two brief references to caselaw outside of this jurisdiction, Hilburn fails to cite any pertinent, relevant authority to support this point. As is frequently reiterated, failure to support a point with authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
Moreover, even if an unintended consequence of the damages cap is that it limits liability in some cases, the stated purpose of the cap is entirely different. As explained in Samsel II, an automobile collision case:
“The legislature’s enactment of [the cap] was influenced by the Citizens Committee Report. The Citizens Committee found that the unpredictability of awards for pain and suffering ‘makes it very difficult to write insurance or to self-insure at appropriate premium or cost levels, and also sometimes results in pain and suffering awards that are so high they result in unreasonable premium increases. In many instances, these increases reach the level of unaffordability.’ ” 246 Kan. at 353.
When placing the damages cap in its proper context in Miller, our Kansas Supreme Court found a similar purpose: namely, to make medical malpractice insurance available and affordable. See 295 Kan. at 660.
Clearly, the cost and availability of medical malpractice insurance are not particularly relevant in the instant case. But like with malpractice insurance, Kansas requires that drivers maintain a certain level of automobile liability insurance under the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. K.S.A. 2010 Supp. 40-3104(a). In fact, the stated purpose of the law requiring liability insurance for drivers “is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages.” K.S.A. 40-3102. Moreover, and as will be discussed in more detail later, our Kansas statutes also require that motor carriers operating in the state maintain liability insurance. K.S.A. 2010 Supp. 66-1,108b (granting the Kansas Corporation Commission “full power, authority and jurisdiction to supervise and control motor carriers”); K.A.R. 82-4-3n (2015 Supp.) (adopting the federal minimum for liability insurance). Like with personal automobile insurance, these mandatory minimums exist to “to protect the interests of the public for injuries due to the negligent operation of licensed motor carriers . . . .” Brown v. Green, 204 Kan. 802, 807, 466 P.2d 299 (1970), overruled on other grounds by Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973). Additionally, albeit in other contexts, our Supreme Court has emphasized the importance in protecting those Kansans who travel on public highways by assuring they receive prompt compensation for automobile accidents. Manzanares v. Bell, 214 Kan. 589, 601, 522 P.2d 1291 (1974) (holding the KAIRA, also referred to as the no-fault automobile insurance law, constitutional).
Aside from her contentions regarding Enerpipe s status as a motor carrier, which will be discussed next, Hilburn offers no real explanation for why the public interest rationale in Miller is inapplicable here. Because the damages cap operates in a broader scheme of mandatory insurance and the State maintains an interest in that insurance remaining available and affordable to compensate accident victims, the first step of the quid pro quo test is satisfied.
Applying the second step of the quid pro quo test to the instant case, an adequate statutory remedy is provided within the scheme of motor carrier insurance.
In the second step of the quid pro quo analysis, this court must “determine whether the legislature substituted an adequate statutory remedy for the modification to tire individual right.” Miller, 295 Kan. at 657. This “more stringent” step requires there be “an adequate substitute remedy conferred on those individuals whose rights are adversely impacted.” 295 Kan. at 657.
In her brief, Hilburn acknowledges that, like with healthcare providers and medical malpractice insurance, motor carriers are required to carry a certain level of liability insurance. However, Hilburn appears to contend that because it is federal rather than state law that mandates this particular liability insurance, our legislature has not substituted an adequate remedy. To put it another way, Hilbum argues that because the wrong legislature provided the substitute remedy, this step remains unsatisfied.
To a certain extent, Hilburn is correct. Federal law mandates that a motor carrier operating in interstate commerce must maintain a certain level of liability insurance. See 49 U.S.C. § 13906(a) (1) (2012) (requiring that, in order to register as a motor carrier, tire registrant must file “a bond, insurance policy, or other type of security... in an amount not less” than the required minimum); 49 U.S.C. § 31139(b) (2012) (setting out the general minimum liability amount). Specifically, a for-hire motor carrier operating a vehicle with a weight of more than 10,001 pounds that carries nonhazardous material must maintain at least $750,000 of insurance on that vehicle. See 49 U.S.C. § 31139(b) (2012); 49 C.F.R. § 387.9 (2015). The minimum level of insurance is even higher for those motor carriers transporting hazardous material. 49 C.F.R. § 387.9 (2015).
However, our Kansas Legislature has also enacted laws concerning die regulation of motor carriers in our state. See K.S.A. 2010 Supp. 66-1,108b (granting the Kansas Corporation Commission “full power, authority and jurisdiction to supervise and control motor carriers”)- Among the regulations promulgated by the corporation commission is K.A.R. 82-4-3n (2015 Supp.), which specifically adopts the minimum liability requirements from the federal regulations. In fact, our Kansas regulation explicitly incorporates 49 C.F.R. § 387, subject to some alterations. K.A.R. 82-4-3n (2015 Supp.). These changes and deletions do not alter the $750,000 liability minimum present in the applicable federal regulation. See K.A.R. 82-4-3n (2015 Supp.). Moreover, our Kansas statutes also provide an independent liability insurance requirement for motor carriers outside of the federal scheme. See K.S.A. 2010 Supp. 66-1,128(a) (stating that except as provided in federal statutes, motor carriers must obtain liability insurance in the amount of $100,000 for one injury or death in one accident, $300,000 for two or more injuries or death in one accident, and $50,000 for the loss of property in one accident). The purpose of this statute, at least according to one appellate court, is to “requirfe] all persons using the Kansas highways as commercial carriers to carry sufficient insurance on their motor equipment to protect the public in case of injuries sustained from the negligent operation of the same.” Marriott v. National Mut. Cas. Co., 195 F.2d 462, 466 (10th.Cir. 1952); see Brown, 204 Kan. at 807.
In her reply brief, Hilburn suggests that our states adoption of the federal liability minimum is insufficient to constitute our Kansas Legislature creating an adequate statutory remedy. In support, she points to a federal regulation that limits a state’s ability to pass or enforce laws concerning interstate motor carriers. But that regulation clearly only limits a state s ability to pass laws that are incompatible with tire federal regulations. 49 C.F.R. § 355.25(a) (2015) (barring states from passing or enforcing laws or regulations “pertaining to commercial motor vehicle safety in interstate commerce which the Administrator finds to be incompatible with the provisions of the Federal Motor Carrier Safety Regulations”)- Given that our Kansas regulation adopted its federal counterpart with only minor changes, it is disingenuous to suggest the laws are incompatible. This conclusion is bolstered by the fact that the federal regulations actually define compatible state laws as those that are either identical to their federal counterparts, have the same effect as their federal counterparts, or “fall within the established limited variances” allowed by the regulations. 49 C.F.R. § 355.5 (2015).
Although the required insurance amounts are different, this motor carrier liability scheme behaves similarly to the medical malpractice insurance one that our Supreme Court found so important in Miller. There, the court emphasized that it had previously “found the requirement of reliable sources of partial recovery for serious injuries to be significant in . . . deciding what constituted an adequate substitute remedy.” 295 Kan. at 662. Here, a rehable source of recovery exists in the form of motor carrier liability insurance mandated by both our state legislature and the federal government, and Hilburn, as someone involved in an automobile accident with a motor carrier, is entitled to its benefits.
Additionally, this motor carrier liability insurance is not the only substitute remedy available to Hilburn. As previously mentioned, under the KAIRA, all Kansas drivers are required to carry liability insurance on their personal vehicles. K.S.A. 2010 Supp. 40-3104(a). In fact, uninsured vehicles are not permitted on our Kansas highways unless they are “expressly exempted” from the general insurance requirement. K.S.A. 2010 Supp. 40-3104(b). Each policy must carry coverage for at least $25,000 for injury or death of one person in one accident, $50,000 for injury or death of two or more people in one accident, and $10,000 for harm to property in one accident. K.S.A. 40-3107(e). It stands to reason that, as a driver of a vehicle on a Kansas highway, Hilburn and her husband had this mandatory insurance—insurance that protected both of them in the event of an accident. Our Supreme Court has previously upheld this insurance as an adequate substitute remedy under the quid pro quo test. Manzanares, 214 Kan. at 599. And when discussing Manzanares in another context, the court noted that the insurance requirement constituted an adequate remedy “even though the injured party was required to purchase the insurance himself or herself.” Aves v. Shah, 258 Kan. 506, 522-23, 906 P.2d 642 (1995).
In her reply brief, Hilburn contends for the first time that the requirement of mandatory automobile insurance cannot constitute an adequate substitute remedy because it predated K.S.A. 60-19a02. In other words, Hilburn argues that to satisfy the quid pro quo test, the substitute remedy must follow the modification of the individual right.
But our Kansas Supreme Court rejected a similar argument in Bair v. Peck, 248 Kan. 824, 844-45, 811 P.2d 1176 (1991), and disapproved of other, earlier language to the contrary. There, the Supreme Court considered a certified question concerning a challenge to the Health Care Provider Insurance Availability Act. Specifically, the medical malpractice plaintiff argued that because the substitute remedies provided by the statute predated the adoption of a provision that eliminated vicarious liability for employer healthcare providers, those remedies could not satisfy the quid pro quo test. But our Supreme Court aptly observed “that major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo.” 248 Kan. at 842. Closely examining the “sizeable quid pro quo” provided by the act at issue, the court concluded that the remedy’s sufficiency was not reduced because it predated the new provision. 248 Kan. at 843-44. According to the court, the proper test was simply “whether the substitute remedy would have been sufficient if the modification had been a part of the original [a]ct.” 248 Kan. at 844.
Of course, this case differs slightly from Bair, as no court has previously determined that the mandatory vehicle insurance discussed above constitutes adequate quid pro quo for purposes of the damages cap. But Hilburn offers no argument that the minimum insurance requirements for either motor carriers or other drivers are insufficient or that this insurance scheme differs significantly from the medical malpractice insurance discussed in Miller. Instead, her only arguments revolve around which legislature provided the remedy at issue and the passage date of the statutes. And importantly, Miller relied in part on cases discussing the mandatory automobile insurance scheme to decide that the comprehensive medical malpractice insurance scheme constituted an adequate substitute remedy. See 295 Kan. at 662.
Obviously, the recovery schemes discussed above are not available to all tort victims. But for Hilburn, the victim of an automobile accident caused by a motor carrier, they provide “a significant, individualized substitute remedy.” Miller, 295 Kan. at 662. Therefore, the second step of the quid pro quo test is satisfied, and the damages cap found in K.S.A. 60-19a02 does not violate the Kansas Constitution as applied to Hilburn.
As a final note, Hilburn concludes her appellate brief by arguing that our Supreme Courts individualized quid pro quo test essentially creates a scenario in which different types of tort victims are treated differently depending on the statutes applicable to their cases. In support of her argument, she cites the equal protection provision of Section 1 of the Kansas Constitution Bill of Rights. But as Hilburn recognizes, equal protection challenges focus on statutes, not on judicially created factor tests. See Miller, 295 Kan. at 666 (discussing the steps of an equal protection challenge to a “statutory classification”). Moreover, our Kansas Supreme Court considered an equal protection challenge to K.S.A. 60-19a02 in Miller but upheld the statute as constitutional. 295 Kan. at 666-70. As previously stated, this court is duty bound to follow Kansas Supreme Court precedent, regardless of whether we agree with the analysis. Farley, 50 Kan. App. 2d at 877. Accordingly, the district court decision is affirmed.
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The opinion of the court was delivered by
Johnson, J.:
Plaintiff, proceeding under the pseudonym John Doe, filed a declaratory judgment action against agents of the State, claiming that retroactive application of the 2011 amendments to the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. (KORA), violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution (hereafter, Ex Post Facto Clause). The district court granted summary judgment in Doe’s favor, finding that while the legislature intended KORA to be a civil statutory scheme, the act was punitive in effect pursuant to the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) (Mendoza-Martinez factors). Consequently, the district court concluded that, because KORA’s retroactive application assigned a new punitive measure to a crime already consummated, it violated the Ex Post Facto Clause.
The State appealed the district court’s judgment, arguing that the district court erred by (1) refusing to strike inadmissible evidence submitted in support of Does motion for summary judgment; (2) taking judicial notice of certain journal articles; and (3) concluding that the KORA amendments violated the Ex Post Facto Clause. In addition, the State complains about the district courts order granting Doe leave to proceed with a pseudonym. We affirm the district court’s result.
Factual and Procedural Overview
In 2003, after being charged with inappropriately touching or fondling a 14- or 15-year-old child, Doe pled guilty to and was convicted of one count of indecent liberties with a minor, in violation of K.S.A. 21-3503(a)(l) (Furse 1995). In April 2003, he received a controlling prison term of 32 months, but the prison portion of his sentence was suspended and he was placed on probation for 36 months. It appears that probation was Doe’s presumptive sentence. Doe successfully completed his probation in April 2006.
At the time of his conviction, KORA required Doe to register with both the Kansas Bureau of Investigation (KBI) and the Johnson County Sheriffs Office for a period of 10 years from the date of his conviction, given that he was not incarcerated. K.S.A. 2002 Supp. 22-4906(a). Doe submitted his initial registration forms following his April 2003 sentencing and thereafter complied with the KORA registration and reporting requirements.
Information from the registration form, such as the offenders name, age, address, gender, race, and photograph, is available for public access on the Johnson County Sheriffs website, which allows the public to search for offenders by name or geographical location. In addition, the website contains a “share and bookmark” feature that allows users to share registry information via email and other Internet information sharing resources.
The KBI’s website provides even more information for public access, including such additional information as the offender’s hair and eye color, the dates of offense and conviction, the county of conviction, and the age of the victim. It also allows the public to search for an offender by name and geographical location. The public can also learn if a phone number, email, or Facebook identity belongs to an offender. Finally, the KBI website provides a community notification system that allows an individual to be notified by email when a registered offender registers a home, work, or school address that is near an address of interest to the notified individual.
Before Doe was scheduled to complete his reporting requirements, on June 15, 2011, the KBI sent a letter to all registered offenders, including Doe, detailing recent legislative amendments to KORA that were to become effective on July 1, 2011. The letter advised Doe that the amendments were retroactive and would apply to all offenders regardless of when their underlying offenses occurred. Particularly germane to Doe was the notification that his period of registration had been extended from 10 years to 25 years after conviction, i.e., Doe’s KORA completion date was changed from the year 2013 to the year 2028.
In response, Doe filed a petition for declaratory judgment against KBI director Kirk Thompson and Johnson County Sheriff Frank Denning (hereafter collectively referred to as “the State”). Doe sought a judicial determination that the retroactive application of the 2011 KORA amendments, particularly the extension of the registration period, violated the Ex Post Facto Clause by effecting an after-the-fact increase in punishment for a previously committed crime. Doe sought, and was granted, leave to proceed with his lawsuit using a pseudonym in order to protect his identity, his family members’ identities, and the identity of the victim in the underlying criminal case.
Both parties filed motions for summary judgment. To his motion, Doe attached affidavits and journal articles. The affidavits described how the registration requirements had adversely impacted Doe and his family. The journal articles provided general discussions of the difficulties that sex offenders encounter due to the registration requirements, together with social science findings regarding the impact that registration laws have on recidivism. The State filed a motion to strike specific portions of the affidavits, claiming that they were “replete with testimony unsupported by specific material facts or personal knowledge or both; inadmissible hearsay testimony”; and contained lay opinion testimony that lacked proper foundation. In addition, the State contended that Doe’s motion for summary judgment “inappropriately attempts to use general law journal articles and other publications in lieu of testimony to establish certain facts.”
The district court denied the defendants’ motion to strike and granted Doe’s motion for summary judgment. As will be discussed in more detail below, the district court found that the 2011 amendments to KORA imposed additional burdens upon KORA registrants so as to render the act punitive in effect. Specifically, the district court concluded that “KORAs current provisions subject Mr. Doe to punishment under any definition,” and, therefore, the retroactive application of those punitive provisions to a previously committed crime violated the Ex Post Facto Clause. The district court entered judgment requiring defendants to immediately terminate Doe’s additional 15-year registration requirement and delete all KORA information that was being publicly displayed.
The State filed a timely appeal, invoicing this court’s jurisdiction pursuant to K.S.A. 60-2101(b), which provides that “[a]n appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United States has been held unconstitutional shall be taken directly to the supreme court.”
Denial of State’s Motion to Strike Material From Plaintiff’s Motion for Summary Judgment
The State argues that the district court erred in failing to strike certain evidence that Doe submitted in support of his motion for summary judgment. Specifically, the State complains about: (1) testimony contained in the affidavits that was not based on personal knowledge; (2) inadmissible hearsay evidence contained within the affidavits; and (3) purported “legislative facts” contained in journal articles, which forms the basis of the second issue discussed below. The State contends that the error was unfairly prejudicial because several of the objectionable affidavit statements “were recited by the district court as uncontroverted material facts.” Doe claims that the State’s argument is a “straw man,” because the statements were not relied upon by the district court in deciding the summaiy judgment motion.
Standard of Review
The State challenges the legal basis upon which the district court considered the affidavits and journal articles in conjunction with Doe’s summaiy judgment motion. We exercise de novo review over a challenge to the legal adequacy of the district court’s decision to admit or exclude evidence. See State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012).
To the extent that we are called upon to interpret our judicial notice statute, K.S.A. 60-409, we conduct a de novo review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013) (statutory interpretation a legal question subject to de novo review).
Analysis
We begin with the State’s challenges to the affidavits of John Doe and his wife, Jane Doe. K.S.A. 2012 Supp. 60-256(e)(l), the statutoiy provision governing motions for summary judgment, contains a specific provision addressing affidavits or declarations that are submitted in support of, or opposition to, a summaiy judgment motion, to-wit:
“A supporting or opposing affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit or declaration, a sworn or certified copy must be attached to or served with the affidavit or declaration. The court may permit an affidavit or declaration to be supplemented or opposed by depositions, answers to interrogatories or additional affidavits or declarations.”
Affidavits submitted in support of, or in opposition to, a summary judgment motion must set forth evidence in a form that would be admissible at trial. Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 285-86, 261 P.3d 943 (2011). Moreover, Kansas Supreme Court Rule 141(d) (2014 Kan. Ct. R. Annot. 258) provides that a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Although the State’s motion to strike objected to 33 of the 44 paragraphs contained in Doe’s affidavit and 15 of the 19 paragraphs contained in Jane Doe’s affidavit, the State’s brief in this appeal narrowed the focus of their objections to 12 paragraphs in Doe’s affidavit and 6 paragraphs in Jane Doe’s affidavit. The challenged paragraphs deal generally with how the registration has impacted the Does’ children, Doe’s employment and housing, Doe’s access to school activities, and Doe’s access to a hospital visitation.
With respect to the Does’ children, the affidavits stated that other parents had instructed their children not to associate with the Doe family; that the Doe children had been teased at school and had come home crying because their classmates had called Doe a “bad man,” a “pervert,” or a “pedophile”; that the children were only repeating what they heard their parents say; and that the parents knew nothing about Doe except what could be reviewed on the offender registry. The State complains that the Does were not personally present to hear what the other children had said or what they had heard from their parents, and that the Does could not personally know whether die other children’s parents had accessed the registry or had obtained their knowledge from some other source.
The State s assertion that the affiants lacked personal knowledge has some merit with respect to the speculation about what the schoolmates’ parents told them or that the parents obtained their knowledge of Doe by accessing the registry. But the Does observed first-hand the trauma their children had experienced and personally heard tire childi'en explain that the source of that mental anguish was teasing and name-calling by their schoolmates. To the extent the State is arguing hearsay, K.S.A. 2012 Supp. 60-460(1) recognizes an exception for statements of physical or mental condition, including the declarant’s existing state of mind or emotion, when the mental condition is in issue or is relevant to prove or explain the acts or conduct of the declarant. See State v. Hobson, 234 Kan. 133, 154, 671 P.2d 1365 (1983). The Doe children’s statements about what their schoolmates said and did was certainly relevant to explain why they came home from school crying.
With respect to his employment, Doe’s affidavit stated that he had continued to work for a corporation throughout his prosecution and even after his conviction, but that he “was terminated once [his] presence on the Offender Registry was brought to the attention of [his] employer.” Doe asserted that someone had told his manager that he was listed as a sex offender, whereupon the manager terminated Doe and had him escorted from the building. Doe related that the manager had said that other employees working for the company had felony convictions, but that Doe’s listing on the registry would expose the company to public relations liabilities and issues related to employees’ concerns for workplace safety.
Doe also testified about his attempts to find employment commensurate with his education, skills, and abilities. He said prospective employers always rejected him as soon as he disclosed his registration status. Some even told him to come back when he was “off the list.”
The State’s brief makes the somewhat confusing argument that Doe had “provided no basis to testily to the truth about [his] former manager’s thoughts about Doe’s registration status,” for example, that there were corporate concerns about liabilities or that a coworker had found Doe on the registry and told the former manager. But, of course, Doe’s basis for testifying about what his former manager said was that the manager was saying those things directly to Doe, while firing him. Moreover, whether the manager was being totally truthful in all that he said to Doe is not really the point. Rather, what is germane is that the manager told Doe that he was fired because his name was on the registry.
Again, although not argued by the parties, it appears that the manager’s statement can be admitted under K.S.A. 2012 Supp. 60-460(1) to explain the manager’s state-of-mind, i.e., the reason he undertook the action at issue, even if it cannot be used to prove that Doe was actually listed on the registry or that there was actually a corporate concern about liabilities. See Monroe v. Board of Ed. of Town of Wolcott, Connecticut, 65 F.R.D. 641, 649 (D. Conn. 1975) (school principal’s affidavit recitation based on what he heard the school board say were reasons for expelling a student fit hearsay exception for declarations of present existing motive or reason for action).
Perhaps Doe might have obtained an affidavit directly from the manager and avoided the State’s hearsay challenge. But we recently opined that “[a] statement contemporaneously describing a declarant’s belief or intention is inherently more trustworthy than a statement made after the fact, when incentives to embellish or fabricate may have arisen.” State v. Cosby, 293 Kan. 121, 131, 262 P.3d 285 (2011). Moreover, even if tire managers statement of the reason for firing Doe was not admissible, it would be reasonable to infer that the reason was the registry, given the timing and abruptness of the termination.
With respect to housing, Does affidavit described his attempts to rent a place to live. Even though his rental applications reflected prior militaiy service, an excellent credit history, and sufficient income to support the monthly rent, landlords repeatedly refused to rent to Doe. The landlords related to Doe that they had no problem with the registration per se but that the map on the website showing where sex offenders live was a problem because it would cause current tenants to leave and potential tenants to avoid the area.
In its brief, the State makes no separate argument as to why this statement should be struck, other than to refer back to its comprehensive presentation to the district court, which included tables specifying specific objections to each paragraph. But Doe could certainly testify that, after he began disclosing that he was listed on the sex offender registry, he was repeatedly denied housing. Then it would be a reasonable inference to draw that a website map showing the location of registered sex offenders would be an impediment to a registrant obtaining an apartment.
The only other affidavit paragraph that drew a specific argument from the State on appeal concerned Doe being denied admittance to visit neighbors at a hospital. The affidavit related that at the entrance, a security guard swiped Does drivers license but then advised him that the hospital could not accommodate his visit and that he had to leave. The affidavit added tire declaration: “I was only barred from entering because I was listed on the Offender Registry, not because of my crime.” The State argues that “Does testimony about the truth of whether a hospital barred his entry solely because of his registration status and not his crime is not founded on personal knowledge of the hospital’s policies or instructions to its guards.”
The States concern about whether the guard’s actions were based upon hospital policy or instructions misses the point. As will be discussed later, Doe s status as a registrant was identified on his drivers license. Doe could certainly testify that he attempted to enter the hospital, but when he presented his sex offender drivers license, he was denied admittance. The district court could consider that testimony and infer that admittance was denied based upon the registry identification on the swiped license.
Nevertheless, to the extent the affidavits contain inadmissible evidence, a remand to the district court is unnecessary. The principal issue before us is whether the district courts summary grant of plaintiffs declaratory judgment was erroneous, as a matter of law. Accordingly, we wifi conduct a de novo review and can disregard any information that was improperly contained within the affidavits.
Judicial Notice of Journal Articles
The State next complains that the district court twice erred in its handling of tire 16 journal articles attached as appendices to Doe’s motion for summary judgment. First, it contends that the district court was wrong in ruling that the Kansas judicial notice statute does not apply to “legislative facts.” Then, the district court compounded the error by actually taking judicial notice of the journal articles to support its determination that KORA violates ex post facto.
While Doe did not cite to the articles in his statement of un-controverted facts, he used them to supply the factual premise for some of his legal arguments. For example, Doe referenced tire journal articles to support his arguments that offender registration and notification requirements create adverse collateral consequences for registered sex offenders, e.g., that registered sex offenders face employment difficulties, challenges to obtain housing, and social stigmatization. He cited to other journal articles in support of the argument that such difficulties can increase a sex offenders recidivism rate; that the offense-based tier system of determining registration lengths was not reasonably related to the danger of recidivism; and that “[cjontemporary studies overwhelmingly indicate that registration and notification laws do not reduce sex crime recidivism rates.”
Standard of Review
The resolution of this issue will depend on the applicability of our judicial notice statute, K.S.A. 60-409. That presents a question of law subject to de novo review. Jeanes, 296 Kan. at 873.
Analysis
The State’s motion to strike the journal articles asserted that Doe was inappropriately using the law journal articles and other publications as a substitute for the competent and admissible testimony needed to establish the material facts upon which his arguments relied. The State also argued that Doe’s legal argument impermis-sibly relied on contentions of fact not contained in his statement of uncontroverted facts, in violation of Kansas Supreme Court Rule 141(a)(1). In response, Doe argued that the journal articles were not offered to prove adjudicative facts, but instead were relevant to establish legislative facts, to which the rules of evidence do not apply.
In denying the State’s motion to strike, the district court concluded that the journal articles containing results of social science research studies were admissible as legislative facts. Accordingly, the district court opined that “[bjecause the studies are legislative facts, the judicial notice statutes do not apply, and the Court may take judicial notice of the studies when ruling on the parties’ summary judgment motions.” In its memorandum decision and order, the district court placed some reliance upon the social science research contained within certain journal articles. ' ''
On appeal, the State argues that Kansas’ judicial notice statute, unlike federal law, makes no distinction between adjudicative and legislative facts, and that judicial notice of the social science evidence relied upon by the district court was not statutorily authorized. In addition, the State contends that the journal articles did not contain legislative facts; that the articles did not support the definitive conclusions reached by the district court; and that Doe was required to have an expert witness to authenticate, explain, validate, or adopt the conclusions upon which tire district court relied. Doe counters that the journal articles do constitute legislative facts to which K.S.A. 60-409 is inapplicable and that both the United States Supreme Court and the Kansas Supreme Court have been taking judicial notice of legislative facts for years without any regard to evidentiary rules, such as evidence admissibility. Nevertheless, Doe suggests that we can hold that the 2011 amendments to KORA are punitive, in violation of the Ex Post Facto Clause, without relying on the legislative facts at issue here.
Doe’s argument that appellate courts have selectively used “legislative facts” to support a holding is not entirely without merit. For instance, in Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), which will be discussed in detail below, the United States Supreme Court refers to “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class.” The high Court even labels the risk of recidivism posed by sex offenders as “‘frightening and high.’” 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]). It gives one pause to think that the “legislative facts” frequently used to justify sex offender registration laws might not be completely accurate, if Doe’s journal articles are to be believed. Nevertheless, the question here is whether our judicial notice statute applied to Doe’s appended journal articles, and we find that it does.
K.S.A. 60-409 specifically lists the type of facts that must or may be judicially noticed. For example, the statute provides that judicial notice shall be taken of common law, constitutions, and public statutes, as well as “specific facts and propositions of generalized knowledge as are, so universally known that they cannot reasonably be the subject of dispute.” K.S.A. 60-409(a). In addition, the statute provides that judicial notice may be taken of “such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute,” and “specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.” K.S.A. 60-409(b)(3) and (4).
A major impediment to Doe’s argument is the statutory language. Unlike the federal rule of evidence, K.S.A, 60-409 does not explicitly limit its application to “adjudicative facts.” Cf. Fed. R. Evid. 201(a) (“This rale governs judicial notice of an adjudicative fact only, not a legislative fact.”)- Ordinarily, “[w]hen 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.” Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725, 317 P.3d 70 (2014).
Perhaps more importantly, our statute appears to govern the types of facts which would fall widiin the category of "legislative facts.” For example, K.S.A. 60-409(a) specifically provides that judicial notice shall be taken of laws, constitutions, and statutes. In contrast, the language of Fed. R. Evid. 201 does not mention statutes, laws, or regulations because the federal provision expressly excludes legislative facts, and “[sjtatutes are considered legislative facts” of which the authority of courts to take judicial notice is “unquestionable.” United States v. Williams, 442 F.3d 1259, 1261 (10th Cir. 2006). Additionally, K.S.A. 60-409(a) provides that judicial notice shall be taken of “specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” (Emphasis added.) This, too, appears to be encompassed by the definition of “legislative facts.” See United States v. Gould, 536 F.2d 216, 220 (8th Cir. 1976) (defining legislative facts as “established truths, facts or pronouncements that do not change from case to case but apply universally”).
Accordingly, even if the district court was correct in determining that the information in the journal articles constituted legislative facts, it nevertheless erred in finding that K.S.A. 60-409 did not apply. If a Kansas court is to take judicial notice of a fact- — either adjudicative or legislative — it must do so in conformity with our judicial notice statutes.
Here, it appears that if the journal articles reporting social science findings fall within any statutory category it would be the provision for “specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.” K.S.A. 60-409(b)(4); see also K.S.A. 60-410 (provisions relating to determination as to propriety of taking judicial notice). But the district court found K.S.A. 60-409(b) inapplicable, and, consequently, it did not consider whether the articles upon which it relied were “sources of indisputable accuracy.”
The State contends that the articles are not indisputably accurate because the subjects of recidivism and the measure of the benefits of public notification laws generally are not closed subjects. Instead, the State argues, the submitted articles are simply “recent scholarship on a debated subject.” We agree. While it does appear that there is an evolution of knowledge and opinion taking place with respect to sex offender recidivism and the effects of public notification laws, the articles appended by Doe to his summary judgment motion could not be deemed to be the definitive final word on the topic, i.e., were not sources of indisputable accuracy.
But, again, we need not remand to the district court. We can simply conduct our de novo review without reference to the appended articles.
Use of a Pseudonym
Before proceeding to the principal issue before us, we pause briefly to address the State s complaint that the district court should not have permitted Doe to proceed under a pseudonym.
Standard of Review
Both parties agree that an abuse of discretion standard of review applies when considering a district courts decision to allow an action to proceed anonymously. See Unwitting Victim v. C.S., 273 Kan. 937, 944, 47 P.3d 392 (2002). Our familiar abuse of discretion standard is stated as follows:
‘“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).” State v. Nelson, 296 Kan. 692, 694, 294 P.3d 323 (2013).
Analysis
This court has expressly held that “[ajlthough anonymous or pseudonymous litigation is an atypical procedure, where an important privacy interest outweighs the public interest in the identity of the plaintiff, the plaintiff should be allowed to proceed anonymously.” Unwitting Victim, 273 Kan. at 944. The Unwitting Victim court balanced the plaintiffs claimed right to privacy against the public interest militating against pseudonymity, utilizing nine factors: (1) The extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided and the substantiality of these bases; (3) the magnitude of public interest in maintaining the confidentiality of the litigants identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his or her refusal to pursue the case at the price of being publicly identified; (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives; (7) the universal level of public interest in access to the identities of the litigants; (8) whether the litigant is a public figure; and (9) whether opposition to the pseudonym is illegitimately motivated. 273 Kan. at 947-48.
As the State acknowledges, tire district court utilized the nine factors to conduct a balancing test, comparing the public’s interests versus Does privacy rights. In other words, the district court used the correct legal standard.
The State does not point us to any place in the district courts careful consideration of the factors where the judge was arbitrary, fanciful, or unreasonable. We have carefully reviewed the courts rulings on each of the factors and cannot discern anything that was arbitrary, fanciful, or unreasonable. The State has failed to establish that no reasonable person would have taken the view adopted by the trial court. To the contrary, the State has offered no rational explanation as to why the public’s safety would be better protected by disclosing the identity of an individual challenging KORA on purely legal grounds as essentially a class representative. Rather, its complaint appears to be simply that the court did not assess the evidence in a manner that would yield the States desired result. This was not a case of an abuse of discretion, but rather the exercise of learned discretion.
Finally, the States challenges to the sufficiency of the evidence are unavailing. The district court had evidence to support its findings. We decline the States implicit invitation to reweigh that evidence.
In short, the district court did not abuse its discretion when it permitted Doe to proceed pseudonymously.
Ex Post Facto Clause Violation
The State s substantive issue is whether the 2011 amendments to KORA can be retroactively applied to Doe without violating the Ex Post Facto Clause. The State contends that, even though Doe committed his crime before the 2011 amendments, the Ex Post Facto Clause is simply inapplicable because the amended KORA is still a regulatory scheme that is civil and nonpunitive. Our resolution will hinge on whether the 2011 amendments rendered tire KORA statutory scheme so punitive in effect as to negate any implied intent to make it “civil.” See Smith, 538 U.S. at 92 (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 [1997]). We find that they do.
But before proceeding, we pause to clarify what we are not deciding today. We are not saying that the 2011 version of KORA is unconstitutional as applied to any sex offender who commits a covered crime on or after its July 1, 2011, effective date. Although we are finding that the KORA statutory scheme is now penal in nature, the legislature is permitted to impose penal sanctions on future violators. We are saying that the legislature cannot add todays new sanction to a punishment imposed yesterday. The only sex offenders affected by this decision are those that have been complying with the Kansas registration requirements in effect when they committed their offenses. And this decision does not relieve any registrant from completing the registration requirements in effect when he or she committed the applicable offense. Further, this opinion will have no effect on any offenders obligations under federal law.
Likewise, as emphasized in State v. Myers, 260 Kan. 669, 700, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997), “we are not balancing the rights of. . . sex offenders against the rights of. . . their victims.” Rather, our duty is to resolve “a claim of constitutional infringement arising from retroactive legislation.” 260 Kan. at 700. The Constitution does not exclude sex offenders from its protections.
Standard of Review
“When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996).” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).
Analysis
Ex Rost Facto Clause
The constitutional protection in issue here is found in Article I, § 10, which simply states, in relevant part, that “[n]o State shall . . . pass any ... ex post facto Law.” ‘We have held that a law is ex post facto if two critical elements are present: (1) The law is retrospective, and (2) the law disadvantages the offender affected by it.” State v. Gleason, 299 Kan. 1127, 1159-60, 329 P.3d 1102 (2014) (citing State v. Jaben, 294 Kan. 607, 612, 277 P.3d 417 [2012]; State v. Cook, 286 Kan. 766, 770, 187 P.3d 1283 [2008]).
Recently, this court clarified that “retroactively applied legislation that simply ‘alters the situation of a party to his disadvantage’ does not, in and of itself, violate the Ex Post Facto Clause. The disadvantage, to be unconstitutional under the Clause, must fall within one of the categories recognized in Beazell [v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 216 (1925)].” State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014). The Beazell category that is applicable here is ‘““[a]ny statute . . . which makes more burdensome the punishment for a crime, after its commission.” Todd, 299 Kan. at 277 (quoting Beazell, 269 U.S. at 169-70); see also Gleason, 299 Kan. at 1159-60. Doe claims, and the district court found, that the 2011 amendments to KORA made the punishment for Doe’s 2001-2002 crimes more burdensome.
But “[t]he constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Myers, 260 Kan. at 677. The State contends that KORA is not punishment for the sex offender s crime, but rather a civil regulatory scheme enacted for the purpose of public safety.
State v. Myers
Kansas first considered whether a sex offender registration law ran afoul of the Ex Post Facto Clause in Myers, which was filed in 1996. Myers related the relatively brief history of Kansas’ law, beginning in 1993 with the Habitual Sex Offender Registration Act (HSORA), which required repeat offenders to register for 10 years. Registration consisted of a statement in writing that included the offender’s name, date of birth, social security number, fingerprints, and a photograph, as well as information on the offense(s) committed and the dates/location of conviction(s). K.S.A. 1993 Supp. 22-4907. But HSORA, specifically K.S.A 1993 Supp. 22-4909, said that tire registration information “shall not be open to inspection by the public” or subject to the Kansas Open Records Act, and that the data could only be obtained by a law enforcement officer or other person specifically authorized by law.
The following year, the act was amended and renamed the Kansas Sex Offender Registration Act (KSORA) because it included first-time offenders, who were subject to the 10-year registration term. Second or subsequent offenses resulted in lifetime registration. KSORA also allowed for public inspection of registration information at the sheriff’s office and specifically made the registration information subject to the Open Records Act. L. 1994, ch. 107, secs. 1-7.
Myers had committed his offense prior to the effective date of KSORA. Consequently, Myers claimed that the retroactive application of KSORA’s reporting and disclosure requirements violated the Ex Post Facto Clause. The State conceded that KSORA was being retroactively applied to Myers but argued that the intent and purpose of KSORA was regulatory, rather tiran punitive. The Myers court agreed with the State, holding that while KSORA contained no express statement of legislative intent or purpose, “the legislative history suggests a nonpunitive purpose — public safety.” 260 Kan. at 681.
But Myers recognized that its analysis did not end with its “public safety” conclusion. Rather, it had to determine “whether the 'statutory scheme was so punitive either in purpose or effect as to negate that intention.' United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980).” 260 Kan. at 681. Ultimately, Myers determined that the registration component of KSORA was remedial but that the public disclosure provisions of the act were too punitive in effect to withstand constitutional scrutiny. Specifically, the Myers court held:
“For Myers, KSORA’s disclosure provision must be considered punishment. We hold that the legislative aim in the disclosure provision was not to punish and that retribution was not an intended purpose. However, we reason that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment. The unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety.” 260 Kan. at 699.
Enroute to that holding, Myers found that the practical effect of KSORA’s unrestricted dissemination of registration information “could make it impossible for the offender to find housing or employment” and that “[ujnrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism.” 260 Kan. at 696. Then, the court opined drat “[t]o avoid the ex post facto characterization, public access [to registration information] should be limited to tiróse with a need to know the information for public safety purposes” and that those authorized to access the information should only use it for public safety purposes. 260 Kan. at 700.
The State urges us to accept Myers’ holding as being equally applicable to the registration component of KORA, but to find that Myers’ holding on the public disclosure component was effectively overruled by the United States Supreme Courts decision in Smith.
Smith v. Doe
In Smith, the United States Supreme Court held that retroactive application of the Alaska Sex Offender Registration Act (ASO- RA) did not violate the Ex Post Facto Clause. 538 U.S. at 105-06. Smith was the first time the Court had considered this type of claim; however, the Court applied its well-established framework of (1) determining whether the legislatures intention was to enact a "a regulatory scheme that is civil and nonpunitive” and, if so, (2) “examining] whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention” to deem it “civil.”’” 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361). This framework is often referred to as the “intent-effects” test. See, e.g., Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001).
Under the intent portion of the test, “[w]hether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’” Smith, 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361). If the legislature intended to punish, the ex post facto violation is established and no inquiry into the effects of the act is required. 538 U.S. at 92-93.
The first inquiry under intent is whether “ ‘the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ ” Smith, 538 U.S. at 93 (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 [1997]). The Court relied upon the Alaska Legislature’s express statutory finding that “‘sex offenders pose a high risk of reoffending’ and identified ‘protecting the public from sex offenders’ .as the ‘primary governmental interest’ of the law.” Smith, 538 U.S. at 93 (quoting 1994 Alaska Sess. Laws, ch. 41, § 1). Citing to its earlier decision in Hendricks, the Court reiterated that “an imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded.’” Smith, 538 U.S. at 93 (quoting Hendricks, 521 U.S. at 363).
Smith held that the stated nonpunitive intent of the ASORA was not altered by the Alaska Constitution’s inclusion of protecting public safety as a purpose for the criminal justice system, by the legislature’s partial codification of the ASORA in tire criminal procedure code, or by the requirement for courts accepting criminal pleas and entering criminal judgments to inform defendants of the ASORA requirements. 538 U.S. at 93-96. The Court noted that its conclusion was “strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures!,]” but “[i] nstead . . . vests the authority to promulgate implementing regulations with the Alaska Department of Public Safety, ... an agency charged with the enforcement of both criminal and civil regulatory laws.” 538 U.S. at 96. Therefore, the Court held that the Alaska Legislatures intent “was to create a civil, nonpunitive regime.” 538 U.S. at 96.
After concluding that the intent of tire Alaska Legislature was nonpunitive, the Court turned to the effects of the ASORA. 538 U.S. at 97. The Court held that “[bjecause we ‘ordinarily defer to the legislature’s stated intent,’ [citation omitted] “ ‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’” Smith, 538 U.S. at 92 (quoting Hudson, 522 U.S. at 100). The Court utilized the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644 (1963), but noted drat “[b]ecause the Mendoza-Martinez factors are designed to apply in various constitutional contexts . . . they are ‘neither exhaustive nor dispositive,’ [citations omitted] but are ‘useful guideposts.’ [Citation omitted.]” 538 U.S. at 97. The Court explained:
“The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: [1] has been regarded in our history and traditions as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive with respect to this purpose.” Smith, 538 U.S. at 97.
Smith summarily dismissed the remaining two Mendoza-Martinez factors — ’’whether the regulation comes into play only on a finding of scienter and whether tire behavior to which it applies is already a crime” — by declaring tiróse factors carried “little weight.” 538 U.S. at 105.
Under the first factor, whether the “regulatory scheme . . . has been regarded in our history and traditions as a punishment,” the Court reasoned that “[a] historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such.” 538 U.S. at 97. The Court noted that sex offender registration and notification statutes “ ‘are of fairly recent origin/ which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.” 538 U.S. at 97 (quoting Doe I v. Otte, 259 F.3d 979, 989 [9th Cir. 2001]).
The Smith Court rejected the respondents’ argument that ASO-RA, and particularly its notification provisions, “resemble shaming punishments of the colonial period.” 538 U.S. at 97-98. The Court recognized that “[sjome colonial punishments indeed were meant to inflict public disgrace”; however, unlike the ASORA, the colonial punishments had a corporal element, involved direct confrontation between the public and the offender, or expelled the offender from the community. 538 U.S. at 97-98. The Court held that the stigma from the ASORA “resulted] not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.” 538 U.S. at 98. The Court was not swayed by the fact that Alaska posted registration information on tire Internet, concluding that a member of the public visiting the State’s website was analogous to the person visiting the official criminal records archive. 538 U.S. at 99.
In analyzing the second factor, whether “the regulatory scheme . . . imposes an affirmative disability or restraint,” the Court considered “how the effects of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” 538 U.S. at 97, 99-100. The Court noted that unlike prison, “the paradigmatic affirmative disability or restraint,” the act did not impose physical restraint. 538 U.S. at 100. Further, die Court held the act less burdensome than occupational disbarment, which is nonpunitive. 538 U.S. at 100. Additionally, the Court rejected sex offenders’ employment and housing difficulties as conjecture unsupported by evidence. 538 U.S. at 100. The Court recognized the potential “lasting and painful impact on the convicted sex offender”; however, the court held “these consequences flow not from the Act’s registration and dissemination pro visions, but from the fact of conviction, already a matter of public record.” 538 U.S. at 101.
The Court also noted that the Ninth Circuit, which had held ASORA constituted punishment, incorrectly believed that ASORA required sex offenders to update registration in person. 538 U.S. at 101. Additionally, the Court rejected the Ninth Circuits conclusion that registration was “parallel to probation or supervised release in terms of the restraint imposed” because while the “argument has some force,” unlike registration, “[probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction.” 538 U.S. at 101. Although noting that offenders “must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so.” 538 U.S. at 101. The Court reasoned that although a sex offender may be prosecuted for a registration violation, such prosecution is separate from the individuals original offense. 538 U.S. at 102.
The third factor involves whether die “regulatory scheme . . . promotes the traditional aims of punishment.” Smith, 538 U.S. at 97. The Supreme Court has described those aims as retribution and deterrence. See, e.g., Mendoza-Martinez, 372 U.S. at 168. The Court held that although the ASORA might deter future crimes “[a]ny number of governmental programs might deter crime without imposing punishment” and “‘[t]o hold that the mere presence of a deterrent purpose renders such sanctions “criminal” ... would severely undermine the Government’s ability to engage in effective regulation.’” Smith, 538 U.S. at 102 (quoting Hudson, 522 U.S. at 105). The Court held that the act’s registration obligations were not retributive based upon the differing duration of reporting for different categories of offenders because these measures were “reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” 538 U.S. at 102.
The Court found that the fourth factor, a rational connection to a nonpunitive purpose, was the most significant factor in its “determination that the statute’s effects are not punitive.” 538 U.S. at 102. In Smith, the respondents agreed that ASORA’s nonpunitive purpose of alerting “ ‘the public to the risk of sex offenders in their communitfy]’ ” was “valid, and rational.” 538 U.S. at 103 (quoting Otte, 259 F.3d at 991). However, the Court summarily rejected the respondents argument that AS ORA was not “‘narrowly drawn to accomplish the stated purpose,’” reasoning that a “statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” 538 U.S. at 103.
When assessing the fifth factor, whether the regulatory scheme is excessive with respect to its purpose, the Court opined it need not determine “whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in fight of the nonpunitive objective.” Smith, 538 U.S. at 105. The Court concluded that ASORA’s application to all convicted sex offenders, without any individualized assessment of the offenders dangerousness, did not render the act punitive. Finding that the risk of recidivism by sex offenders was “ ‘frightening and high,’ ” the Court held that “[i] n tire context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants’ convictions without violating the prohibitions of the Ex Post Facto Clause.” 538 U.S. at 103-04.
Relying on empirical research on child molesters, the Court also held that the duration of ASORA’s reporting requirements was not excessive because “ ‘most reoffenses do not occur within the first several years after release,’ but may occur ‘as late as 20 years following release.’” 538 U.S. at 104 (quoting National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U.S. Dept, of Justice, Child Sexual Molestation: Research Issues 14 [1997]).
Finally, the Court held that the widespread dissemination of the registration information was not excessive, instead finding that the “notification system is a passive one: An individual must seek access to the information.” 538 U.S. at 105. The Court also determined that making the registry information available throughout the state was not excessive in light of population mobility, citing to a study indicating that 38% of recidivist sex offenses took place in different jurisdictions than where the previous offense was committed. 538 U.S. at 105.
Having determined that the respondents had failed to show “that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme,” the Smith majority declared that the act was nonpunitive and that its retroactive application did not violate the Ex Post Facto Clause. 538 U.S. at 105-06.
In stark contrast, the Alaska Supreme Court would later use the same intent-effects test that the Smith Court utilized but would find that ASORA violated the Ex Post Facto Clause of the Alaska state constitution, concluding:
“Because ASORA compels (under threat of conviction) intrusive affirmative conduct, because this conduct is equivalent to that required by criminal judgments, because ASORA makes the disclosed information public and requires its broad dissemination without limitation, because ASORA applies only to those convicted of crime, and because ASORA neither meaningfully distinguishes between classes of sex offenses on the basis of risk nor gives offenders any opportunity to demonstrate their lack of risk, AS ORA’s effects are punitive. We therefore conclude that the statute violates Alaska’s ex post facto clause.” Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).
Interestingly, the Alaska court cited with approval to Myers. Doe, 189 P.3d at 1017. Other states have likewise relied on their state constitutions to prohibit retroactive application of sex offender registration statutes. See Wallace v. State, 905 N.E.2d 371, 377-78 (Ind. 2009); Doe v. Dept. of Public Safety and Correctional Services, 430 Md. 535, 547-48, 62 A.3d 123 (2013); State v. Williams, 129 Ohio St. 3d 344, 347-49, 952 N.E.2d 1108 (2011); Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, ¶ 76-79, 305 P.3d 1004 (2013). But, Kansas does not have a specific Ex Post Facto Clause in our state constitution. Todd, 299 Kan. at 276.
And this court is bound by the United States Supreme Courts interpretation of the United States Constitution, albeit we are not bound by any lower federal court. See Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993) (Thomas, J., concurring) (“The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state courts interpretation of federal law give way to a (lower) federal court s interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”). Accordingly, our inquiry becomes whether KORA, as amended in 2011, is sufficiently distinct from AS ORA reviewed in Smith that it mandates a different result under the federal Constitution.
Application of Intent-Effects Test to KORA, as Amended in 2011
In the initial step of the intent-effects test, the statutory provisions are construed to determine whether the legislature intended to enact a punitive provision. If so, retroactive application of the provisions is always prohibited; no further inquiry is needed. Smith found AS ORA nonpunitive, first pointing to express statutory language, stating that the objective of the law was to protect the public from sex offenders and that the release of certain information to the public assists in protecting the public safety. 538 U.S. at 93. Smith also noted that Alaska’s statutory scheme placed the notification provisions in the health, safety, and housing code, albeit the registration provisions were codified in the criminal procedure code. Moreover, the Alaska statute mandated no procedures but rather it vested the Alaska Department of Public Safety with authority to promulgate implementing regulations, leading the Smith Court to infer that “the legislature envisioned the Act’s implementation to be civil and administrative.” 538 U.S. at 96.
KORA, in contrast, is wholly contained within our criminal procedure code, mandates the manner of implementation, and imposes serious criminal sanctions for noncompliance. As State v. Myers, 260 Kan. 669, 678, 923 P.2d 1024 (1996), pointed out, Kansas’ act “contains no express statement of legislative intent or purpose.” Curiously, our sex offender act has been amended numerous times since Myers noted tire absence of a legislative expression of intent or purpose while finding the notification provisions punitive in effect. See L. 1997, ch. 181, secs. 7-14; L. 1999, ch. 164, secs. 29-34, 36; L. 2000, ch. 150, sec. 2; L. 2001, ch. 208, secs. 10-16; L. 2002, ch. 163, sec. 6; L. 2002, ch. 55, secs. 1-4; L. 2003, ch. 123, secs. 3-9; L. 2005, ch. 202, secs. 1-2; L. 2006, ch. 212, sec. 20; L. 2006, ch. 214, sec. 2, 6-10; L. 2007, ch. 181, secs. 1-7; L. 2008, ch. 57, sec. 1; L. 2008, ch. 74, sec. 1; L. 2009, ch. 32, sec. 44; L. 2010, ch. 66, sec. 1; L. 2010, ch. 74, sec. 11; L. 2010, ch. 135, secs. 35-37; L. 2010, ch. 147, sec. 8; L. 2010, ch. 155, sec. 10; L. 2011, ch. 95, secs. 1-11; L. 2012, ch. 149, secs. 1-10; L. 2013, ch. 127, secs. 1-8; and L. 2014, ch. 117, secs. 2-3. Nevertheless, the legislature has yet to definitively express the intent or purpose of the act.
Notwithstanding that KORA is more fully clothed in criminality than was Smith’s ASORA, we need not ruminate on how the high court would judge the Kansas Legislature’s intent or purpose. We have our own precedent; Myers found a nonpunitive purpose of public safety in the legislative history of KSORA. Doe points us to no subsequent legislative history that would lead us to overturn Myers’ holding on the intent portion of the analysis. Accordingly, we proceed to consider how the factual distinctions between the statute under examination in Smith and that under examination today affect tire “effects” portion of the test.
We begin with a fist of the most significant differences between the 2011 version of KORA and the version of ASORA reviewed in Smith:
• KORA applies to a broader group of offenders. The 2011 KORA applies to sex offenders, violent offenders, and drug offenders (with no personal use exception). K.S.A. 2011 Supp. 22-4902. ASORA only applied to sex offenders and child kidnappers. Alaska Stat. § 12.63.010 (2000).
• KORA requires frequent in-person reporting regardless of registration changes. KORA requires in-person quarterly reporting for sex offenders in each location where the offender resides, maintains employment, or attends school. K.S.A. 2011 Supp. 22-4905(b). Additionally, transient offenders must register in person in tire location where the offender is physically present every 30 days. K.S.A. 2011 Supp. 22-4905(e). ASORA did not require in-person reporting after initial registration. Alaska required annual written verification for nonaggravated sex offenses and quarterly written verification for aggravated offenses. -Alaska Stat. § 12.63.010(d) (2000).
• KORA often requires longer registration tenns. For the majority of first-time sex offenses, KORA requires 25 years or lifetime registration. K.S.A. 2011 Supp. 22-4906. For first-time nonaggravated sex offenses, the ASORA required 15-year registration. Alaska Stat. § 12.63.020 (2000).
• KORA requires additional registration infoimation. In addition to the registration information offenders were required to provide under ASORA, KORA registration requires: alias dates or places of birth; temporary lodging information; telephone numbers; social security number; occupation; name of any anticipated employer and anticipated place of employment; photocopies of current driver’s licenses and identification cards; aircraft and watercraft license plates and registration information; information concerning where motor vehicles, aircraft, and watercraft are habitually parked or otherwise kept; professional licenses, designations, and certifications; preconviction mental health treatment; schools attended or expected to be attended; travel and immigration documents; name and telephone number of probation, parole, or community corrections officer; email addresses; all online identities used on the Internet; any information relating to membership in online social networks; DNA exemplars; and the sex and date of birth of each victim. Compare K.S.A. 2011 Supp. 22-4907 with Alaska Stat. § 12.63.10 (2000).. .
• KORA requires in-person registration updates. KORA additionally requires in-person registration updates within 3 days of any information change. K.S.A. 2011 Supp. 22-4905(g). ASORA required a written update for a change of residence. Alaska Stat. § 12.63.010(c) (2000).
• KORA requires additional information dissemination to the public. In addition to the information made available to the public under ASORA, KORA disseminates: any other offenses for which the offender has been convicted or adjudicated;'-temporary lodging information; address of any place where the offender will be a student; and professional li censes, designations, and certifications the offender holds. K.S.A. 2011 Supp. 22-4909(b)(3), (5), (8), and (10); Alaska Stat. § 18.65.087 (2000).
• KORA imposes costly registration fees. KORA requires that offenders remit a $20 fee, four times per year, in each location where an offender resides, maintains employment, or attends school. K.S.A. 2011 Supp. 22-4905(k). ASORA allowed the department of public safety to adopt fees for registration and required that fees be based upon actual costs and be set at a level not to discourage registration. Alaska Stat. § 18.65.087(d)(3) (2000).
• KORA requires provision of notice for travel outside the United States. Under KORA, an offender must give 21 days’ notice of international travel except in emergency situations. K.S.A. 2011 Supp. 22-4905(o). No restriction on travel was included in ASORA.
• KORA requires annual drivers license and identification card renewal and the Motor Vehicle Drivers’ License Act requires a distinguishing number on the KORA registrant’s driver’s licenses. K.S.A. 2011 Supp. 22-4905(1); K.S.A. 2014 Supp. 8-243(d). ASORA did not contain similar requirements.
• Kansas considers whether a parent is subject to KORA or is residing with a person subject to KORA in determining child custody, residency, and parenting time. K.S.A. 2011 Supp. 23-3203(h), (j). Alaska’s domestic relations code did not require consideration of registered offender status. See Alaska Stat. §§ 25.20.090 (2000); 25.24.150 (2000).
• KORA imposes burdensome penalties for violations. Under the 2011 KORA, a first conviction is a severity level 6 person felony, a second conviction is a severity level 5 person felony, a third conviction is a severity level 3 person felony, and a violation continuing for more than 180 days is a severity level 3 person felony. K.S.A. 2011 Supp. 22-4903. Under ASORA, the penalty for a first-time failure to register was a class A misdemeanor. Alaska Stat. § 11.56.840 (2000). The penalty for a second time failure to register or failure to register with the intent to escape detection or identification and to facilitate the persons commission of a sex offense or child kidnapping was a class C felony, the lowest severity level felony in Alaska. Alaska Stat. § 11.56.835 (2000); Alaska Stat. § 11.81.250 (2000).
The district court found these differences significant, opining that, since Smith, the requirements in Kansas had become “increasingly severe.” Further, the district court noted that the advent of the widespread use of social media had significantly changed the landscape for dissemination of offender information. The court then individually discussed four of the Mendoza-MarHnez factors.
Following the Smith format, we will likewise individually discuss the guideline factors from Mendoza-Martinez, although it is important to keep in mind that it is the entire “statutory scheme” that must be examined for its punitive effect. See Smith, 538 U.S. at 92 (effects analysis requires the appellate court to “examine . . . the statutory scheme’ [emphasis added]); Myers, 260 Kan. at 681 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 [1980]) (“ask whether the ‘statutory scheme was so punitive either in purpose or effect’” [emphasis added]). For instance, a particular registration requirement may not have the same punitive effect in a statutory scheme that permits a reduction in registration time for proven rehabilitation, as it does in a statutory scheme that precludes any individualized modifications.
The first factor considered by Smith was whether the regulatory scheme has been regarded in our history and traditions as a punishment. 538 U.S. at 97. Again, the Smith Court rejected the argument that ASORA’s notification provisions “resemble shaming punishments of the colonial period,” finding that such early punishments as shaming, humiliation, and banishment involved more than the dissemination of information. 538 U.S. at 97. Then, notwithstanding that the focus was supposed to be upon the “effects” of the law, rather than the legislative intent, Smith rationalized that Alaska did not “make the publicity and the resulting stigma an in tegral part of the objective of the regulatory scheme.” 538 U.S. at 99. Nevertheless, the 2011 KORA crosses the line drawn by Smith.
Myers cited to Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1265 (3d Cir. 1996), for a quotation from Nathaniel Hawthorne, The Scarlet Letter, 63-64 (Random House 1950) (1850), which, referring to tire portion of Hester Prynne’s punishment for adultery that required her to wear a scarlet “A” upon her dress, stated: “ There can be no outrage . . . against our common nature, — whatever be the delinquencies of the individual, — no outrage more flagrant than to forbid the culprit to hide his face for shame; as it was the essence of this punishment to do.’” KORA mimics that shaming of old by branding the driver’s license of a registrant with the designation, “RO.” See K.S.A. 2014 Supp. 8-243(d). While a drivers Acense is not worn upon a persons chest, it is required to be displayed for a variety of reasons unrelated to KORAs pub Ac safety purpose, e.g., to obtain medical treatment, to obtain a checking account balance from a bank teller, to vote in Kansas, etc. See also Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, ¶ 59, 305 P.3d 1004 (2013) (“drivers Acense is frequently necessary in face-to-face encounters when cashing a check, using a credit card, applying for credit, obtaining a job, entering some public buildings, and in air travel. . . subjecting] an offender to unnecessary public humiAation and shame . . . not unAke a "scarlet letter.’”). Consequently, in the words of Smith, the statutory scheme “[holds] the person up before his fellow citizens for face-to-face shaming.” 538 U.S. at 98. In the words of the district court, “the notation on the [drivers] license is a visible badge of past criminaAty in Ane with traditional punishment.”
Likewise, Smith’s description of Alaska’s posting of registration information on the Internet as a passive system, akin to physically visiting “an official archive of criminal records,” 538 U.S. at 99, is antiquated in todays world of pushed notifications to Astservs and indiscriminate social media sharing. The Supreme Court has recently recognized the vast amount of data that is currently available to most citizens on their smartphones and that “a cell phone [can be] used to access data located elsewhere, at the tap of a screen.” Riley v. California, 573 U.S. _, 134 S. Ct. 2473, 2491, 189 L. Ed. 2d 430 (2014). Indeed, Myers’ fear that “[t]he print or broadcast media could make it a practice of publishing the list [of sex offenders] as often as they chose,” 260 Kan. at 697, has come to pass. Websites contain pop-up ads offering to locate sex offenders for the viewer. Indeed, one would not be surprised to find that an application (app) for a mobile device had been developed that would provide instant access to the location of all sex offenders in a given location. And, as the district court noted, members of the public may now post public comments about an offender after using the Johnson County “share and bookmark” feature that posts registry information on social media sites such as Facebook, Twitter, and Myspace. In contrast, Smith’s analysis of AS ORA specifically noted the absence of the ability of the public to comment. 538 U.S. at 99. The district court therefore concluded that “citizens can use the county-sponsored website to create a virtual forum for public shaming, which closely resembles traditional punishment.” We agree.
Any suggestion that disseminating sex offender registration on an Internet website reaches no more members of the public and is no more burdensome to the offender than maintaining an archived criminal record simply ignores the reality of todays world. Moreover, tire argument that the additional widespread dissemination enhances the effectiveness of the registration system simply misses the point; the focus of this part of the intent-effects test is to assess whether there is a penal effect on the offender. For example, placing the offender in a locked stockade on the courthouse square would more effectively achieve the purpose of public safety, but, of course, the effect of that method could not be labeled nonpunishment.
On the registration side of the statutory scheme, KORA utilizes a traditional means of punishment when it requires quarterly registration in person in each location where the offender works, lives, or attends school. Reporting in person, to a State agent, up to 12 times a year, to update the agent on the offenders personal, employment, and educational status replicates what we most often see when the criminal sanction of probation or parole is imposed.
The next Mendoza-Martinez factor — whether the statutory scheme subjects the offender to an affirmative disability or restraint — involves an inquiry into “how the effects of the Act are felt by those subject to it.” 538 U.S. at 99-100. Smith noted that ASORA imposed no physical restraint on offenders, and, although registrants had to inform the authorities of certain changes, such as a job or residence, the offenders were not required to obtain prior permission for the change. Of course, in Kansas, KORA requires 21 days’ prior notification for international travel.
But the more common restraint on an offenders freedom of movement under KORA is more indirect. The offender must register in person quarterly in each applicable jurisdiction and remit $20 to each jurisdiction each time, at the risk of committing a new felony under K.S.A. 2011 Supp. 22-4903. As the district court noted, that will result in the offender paying from $80 to $240 a year. Further, KORA’s definition of “reside” is extremely broad. K.S.A. 2011 Supp. 22-4902(j) provides that “[i]t shall be presumed that an offender resides at any and all locations where the offender stays, sleeps or maintains tire offenders person for seven or more consecutive days or parts of days, or for seven or more non-consecutive days in a period of 30 consecutive days.” Under those rales, an offender could inadvertently acquire a new registration residence by taking a week’s vacation out-of-county, or by having a sales route where the offender stays in an out-of-county motel for 2 nights a week, i.e., 8 nonconsecutive days in a period of 30 consecutive days. As the district court opined, “in-person, quarterly reporting restricts offenders’ time and freedom” and is akin to the punitive measure of probation or parole, as we have discussed above.
The district court also found that KORA registration and notification created housing and occupational barriers for an offender. Smith rejected as “conjecture” the argument that registration under ASORA had created employment or housing problems in that case, declaring that “these consequences flow not from the Act’s registration and dissemination provisions, but from tire fact of conviction, already a matter of public record.” 538 U.S. at 100-01. But here, the State’s argument that Doe’s employment and housing barriers were constructed by his conviction, rather than by his registration, is not supported by the evidence.
Granted, the district court relied on social science research gleaned from the journal articles for such information as the pervasiveness of employment difficulties associated with registration. But the district court also had direct testimony in this case from Doe himself, stating that he retained his job through the time of his prosecution and conviction, only to be fired after his registration became public. Moreover, Doe s listing on the registiy was the reason given for both his job termination and his inability to get a better job. Likewise, the published map showing the residential location of sex offenders was the reason given by prospective landlords for refusing to rent to Doe.
To say Doe’s housing and employment problems flowed from the public record of his conviction, rather than from the notification provisions of KORA, defies logic and common sense. First, one would have to question how many members of the general public are proficient at accessing and interpreting archived court records. Next, those records would not identify the offenders place of employment, so that a public relations reaction to the corporate employer would be. a remote possibility, whereas the offender is tied to the employer in the registry. Likewise, the criminal defendants address at the time of conviction, even if contained within the public portion of the court records, would not necessarily be the same as when the record was accessed. Moreover, although a defendant on probation must notify the defendants probation officer of a change of address, that information is not open to the public. Certainly, potential landlords would have no concern that other tenants would ascertain the offenders current address from the prior court record. That information would have to come from KORA.
Blaming the public record of conviction, rather than KORA registration and dissemination, for housing and employment difficulties also defies our precedent. Myers looked at the practical effect of unrestricted dissemination of registration information and concluded that it “could make it impossible for tire offender to find housing or employment.” 260 Kan. at 696. Certainly, the ensuing increase in the number of people with access to the Internet since Myers, along with the increased ease with which information can be shared and commented upon, only serves to corroborate that case’s prescient holding.
Accordingly, we affirm the district courts determination that KORA’s statutoiy scheme works an affirmative disability or restraint on the offender.
The next factor is whether the statutory scheme promotes the traditional aims of punishment: deterrence and retribution. Smith acknowledged the deterrent effect of the law but summarily considered that to be a necessary component of effective government regulation. Smith dren rejected the lower courts conclusion that ASORA was retributive for basing the length of the reporting requirement on die extent of wrongdoing, rather than the risk posed by the offender. It concluded, widiout further explanation, tiiat the broad categories and length of required reporting were “reasonably related to die danger of recidivism” and, tiius, consistent with the regulatory objective. 538 U.S. at 102. But cf. Com. v. Baker, 295 S.W.3d 437, 444 (Ky. 2009) (“When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, tiiat restriction begins to look far more like retribution for past offenses than a regulation intended to prevent future ones.”).
If the 10-year length of reporting was reasonably related to the danger of recidivism in 2003, when Doe was convicted and the year after Smith was decided, one has to wonder what happened in 2011 to make the reasonable relationship two and a half times greater. The State has provided nothing to support the reasonableness of the 25-year reporting term. Even Smith’s “legislative fact” in support of ASORA’s length of reporting was that sex offenders may reoffend “‘as late as 20 years following release.’” 538 U.S. at 104. KORA’s new reporting term is 25% longer than Smith’s outside limit. Moreover, Doe’s “legislative fact” from current social science indicates tiiat the risk of recidivism actually decreases as the offender ages. Even if we do not take judicial notice of that “legislative fact,” we can conclude that there is no evidentiary or logical support for the increase in reporting term. Such arbitrariness is inherently retributive.
The next factor — -which Smith labeled “a ‘[mjost significant’ factor” — is the acts rational connection to a nonpunitive purpose. Smith found AS ORA rationally connected to the nonpunitive purpose of public safety, even though the act was not “ 'narrowly drawn to accomplish the stated purpose.’” 538 U.S. at 102-03. Smith would apparently require the imprecision to render the nonpuni-tive purpose a “'sham or mere pretext.’” 538 U.S. at 103 (quoting Hendricks, 521 U.S. at 371).
Arguably, under the current KORA, public safety has become a pretext. Without differentiating between the 18-year-old immature, marginally intelligent, sexually naive person who succumbs to the seduction of a mature-acting, sexually informed 15-year-old child and the 30-year-old confirmed pedophile that rapes preschoolers and is not amenable to rehabilitation, KORA fails to effectively notify the public of the danger of recidivism. Too much is too little. Moreover, that flaw is accentuated by KORA’s prohibition in K.S.A. 2011 Supp. 22-4908: “No person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under the act.” Even fully rehabilitated offenders will be on the registry for a quarter-centuiy. In the words of tire district court, “[w]ithout a mechanism for challenging long registration periods, offenders who are compliant with the registration requirements and have a low risk of recidivism suffer consequences that outweigh the minimal increases in public safety created by registration.” Cf. Gonzalez v. State, 980 N.E.2d 312, 320-21 (Ind. 2013) (finding that Indiana’s registration law was excessive in relation to its articulated purpose because the act contained no mechanism for determining whether offender had been rehabilitated or no longer presented a risk to the public thereby alleviating the need for registration).
On the flip side, the registiy could be underinclusive because only convicted sex offenders must register. One who has engaged in the same conduct as Doe might well avoid being subjected to the rigors of registration by pleading to á non-sex offense, by being acquitted because of a suppressed confession, or by having a conviction overturned on appeal because of an illegal search or some other reason, other than insufficient evidence. One can envision that a prosecutor might use offender registration as a plea bargain ing chip to leverage a guilty plea to a charge that the prosecutor has amended from a KORA offense to a non-KORA offense, which would effectively nullify the public safety purpose of KORA. Again, the point is that the statutory scheme is not closely connected to the nonpunitive purpose of public safety.
The final factor is whether the statutory scheme is excessive in relation to its regulatory purpose. Our discussion of the other factors has touched upon the excessive nature of KORA, at least as amended in 2011. For instance, the information a registrant is required to provide has increased dramatically from that required in the Myers era, to include such items as the registration number of owned watercraft.
And the penalty for noncompliance with the stringent and complicated registration rules has been elevated to a level 6 person felony, as opposed to being a misdemeanor under the act reviewed in Smith. Granted, the countering argument is that the increased penalty is for committing a new crime. But the sex or other offense is a necessary predicate to any conviction for failing to comply with KORA, because only those who have been convicted of a qualifying offense are subject to the registration requirements. Moreover, when the penalty for failing to comply with registration exceeds the penalty for the crime triggering the registration requirement, the statutory scheme loses its civil regulatory blush.
Smith relied heavily on its “legislative facts” to justify AS ORA’s excessive provisions, which may or may not remain valid. But what we do know is that Smith’s reliance on the notification system being “passive,” 538 U.S. at 105, does not translate to todays system under KORA. For instance, the KBI will provide active notification under certain circumstances, and, as the district court correctly noted, “the current internet notification schemes are more aggressive than they were when Smith was decided, offenders are at a greater risk of suffering ostracism and even vigilante acts by members of the community.” Again, Myers got it right with respect to the effects of unlimited public dissemination of registration information.
In finding that the current KORAs statutory scheme is so punitive in effect as to negate the implied legislative intent to deem it civil, we are not unaware of the fact that a number of federal Circuit Courts of Appeal have found the federal act, the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. (2012), nonpunitive and appropriately applied retroactively. Those cases are not persuasive because of the differences between SORNA and KORA. For instance, SORNA differentiates between classes of offenders, whereas KORA is a one-size-fits-all scheme; KORA is not restricted to just sex offenders, whereas SORNA is; KORA has no mechanism for obtaining an early release from the registration requirement, whereas SORNA allows for a reduction in registration time for a clean record; KORA requires a special, annually renewed driver s license and child custody notification not found in SORNA; KORA requires more registration information than SORNA; KORA imposes a fee, whereas SORNA does not; and KORA has a broader definition of “resides” than SORNA. See 42 U.S.C. §§ 16911, 16914-16 (2012). In other words, looking at the statutory scheme as a whole, the effects of KORA are considerably more punitive than those of SORNA.
In short, we affirm the district court. KORA as amended in 2011 is punitive in effect, and the amended statutory scheme cannot be applied retroactively to any person who committed the qualifying sex offense crime prior to July 1, 2011.
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The opinion of the court was delivered by
Biles, J.:
This is a medical malpractice case in which we consider whether plaintiff put forth sufficient evidence of causation to survive summary judgment. The district court granted Dr. Neil Ro-senquist’s summary judgment motion, holding there was insufficient evidence of a cause-and-effect relationship between the radiologist’s alleged negligent diagnosis and the patient’s death. The Court of Appeals affirmed the district court’s granting of summary judgment on Rosenquist’s motion. Drouhard-Nordhus v. Rosenquist, No. 108, 859, 2013 WL 5737363 (Kan. App. 2013) (unpublished opinion). We affirm because the plaintiff failed to marshal evidence of causation sufficient to defeat the summary judgment motion.
Factual and Procedural Background
The parties agree to tire following facts as alleged in Rosenquist’s statement of uncontroverted facts from his summary judgment motion. Plaintiff did not allege additional uncontroverted facts pertinent to this appeal.
On August 23,2007, Donald Drouhard went to tire Harper Hospital District No. 5 Emergency Department complaining of abdominal pain and a history of nausea and dry heaving. CT scans of Drouhard’s abdomen, pelvis, and chest were performed and sent to the defendant radiologist, Dr. Neil Rosenquist, who gave a verbal report to Stan Wedman, a physician assistant. Rosenquist later dictated a written report, but it never reached the subsequent treating physicians.
Wedman’s notes from Rosenquist’s verbal report indicate the radiologist suspected an obstructive process of the gallbladder. Based on that verbal report, Wedman contacted Dr. Larry Beamer, a surgeon, at Via Christi Regional Medical Center for a surgical consult. Drouhard was transferred to Via Christi, and the CT scans were sent with him.
During a discovery deposition, Beamer testified that the only tiring he was told about Rosenquist’s interpretation of the CT scans was that Drouhard had an enlarged gallbladder, funny-shaped liver, and an absent spleen. Once at Via Christi, Drouhard was seen by Beamer’s resident, Dr. Stanley Jones, who testified during a deposition that he took Drouhard’s CT scans to Via Christi’s radiology department, where an unidentified radiologist told Jones the CT scans appeared normal. According to Jones, that radiologist read the scan to show mild distention of the gallbladder, no stones, a congenital abnormally shaped liver, and no evidence of small bowel obstruction.
Beamer further testified that he reviewed the CT scans personally and with another unidentified Via Christi radiologist. Beamer’s impression from the CT scans was “dilated gallbladder without evidence for acute inflammatory change. Abnormal shape of liver—etiology unknown. Surgical absence of spleen.”
Drouhard died while at Via Christi the day after he went to the Harper Hospital Emergency Department. The coroner’s report diagnosed an intrahepatic hematoma with adjacent hepatic tissue damage. The cause of death was an acute intra-abdominal bleed with associated hemodynamic and cardiac instability.
Drouhard’s widow sued Rosenquist, Beamer, Via Christi, and several other doctors for medical malpractice. After the widow’s death, Marilee Drouhard-Nordhus, a daughter, was substituted as the named plaintiff. Only the claims against Rosenquist are of concern in this appeal.
Following discovery, the district court conducted a pretrial conference during which plaintiff specified the negligence allegations against Rosenquist as failing to: (1) describe the abnormal density of tire gallbladder; (2) report a potential diagnosis of a gallbladder containing a large hematoma; and (3) report possible free extrav-asation of contrast. Rosenquist moved for summary judgment, arguing plaintiff failed to establish causation in fact based on two missing links in the causal chain: (1) the treating physicians at Via Christi never relied on Rosenquist’s allegedly negligent evaluation of the CT scans; and (2) but for the allegedly incorrect diagnosis by the radiologist, the patient’s death would not have occurred.
Plaintiff did not controvert Jones’ or Beamer’s testimony that they took the CT scans to Via Christi radiologists for independent review. Instead, plaintiff argued only that the physicians’ veracity on this was in question because both failed to record or recollect the identity of those radiologists. In his reply, Rosenquist noted plaintiff did not recite any evidence actually controverting the facts testified to by the doctors. See Supreme Court Rule 141 (2014 Kan. Ct. R. Annot. 257).
During a hearing on summary judgment, plaintiff argued the testimony of plaintiff s expert radiologist, Dr. Seth N. Glick, sufficiently established causation regarding the patient’s death, citing the concluding paragraph in Glide's expert report, which states:
“It is my opinion within a reasonable degree of medical certainty that Dr. Rosen-quist deviated from the standard of care by failing to describe tire abnormal density of the gallbladder and failing to report a potential diagnosis of a gallbladder containing a large hematoma. More likely than not, this would have resulted in a stat ultrasound and/or [hepatobiliary iminodiacetic acid (HIDA)] scan lohen Mr. Drouhard was in stable condition and appropriate and life-saving intervention should then have been administered.” (Emphasis added.)
Plaintiff also relied on an excerpt from Glick’s deposition testimony when Rosenquist’s counsel asked Glick for the “basis for [his] opinion that Dr. Rosenquist providing any different or additional information would have prompted an earlier ultrasound or HIDA scan.” Glick responded:
“Well, again, a lot of what I can discuss is really based on what I think the—what I know that the CT scan showed. And I think it’s very possible—more likely an ultrasound than a ELIDA scan would have been the appropriate follow-up for what I saw on the CT scan. But based on what I saw on the CT scan, I mean, I would think it would be very reasonable to do emergency surgery and not even do any further testing to be honest.” (Emphasis added.)
The district court adopted the facts in Rosenquist’s motion as uncontroverted and granted him summary judgment, finding causation lacking. First, it held “there is no evidence to support a conclusion from any expert that this alleged deviation from the standard of care in any way caused or contributed to the death of [Drouhard].” (Emphasis added.) Second, it held plaintiff failed to prove causation in fact because Rosenquist’s read of the CT scan was not relied on or used by Beamer while treating Drouhard.
On appeal to the Court of Appeals, plaintiff argued the district court failed to view the evidence in the light most favorable to her when granting summary judgment. Plaintiff argued Glick estab lished sufficient evidence of causation to survive summary judgment. The Court of Appeals, like the district court, held plaintiff failed to establish a causal connection between any negligence by Rosenquist and Drouhard’s death. Drouhard-Nordhus, 2013 WL 5737363, at *5-6.
The panel held Click’s expert report failed to “reveal any explicit link between Dr. Rosenquist’s alleged breach of duty and [Drou-hard’s] death” and noted Glick admitted as much by testifying he did not intend to testify regarding any causal link. 2013 WL 5737363, at “5. The panel further held plaintiff s admissions that none of the Via Christi physicians received Rosenquist’s written report or relied on his verbal report also demonstrated causation was lacking. 2013 WL 5737363, at *6.
Plaintiff petitioned for this court’s review of the panel’s decision affirming summary judgment of her claim against Rosenquist. Jurisdiction is proper under K.S.A. 20-3018(b). See also K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review).
Analysis
The only question presented is whether the district court erred by granting summary judgment on the medical malpractice claim against Rosenquist.
Standard of Review
The standard for reviewing summary judgment is well-established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in tire case. On appeal, we apply the same rules and when we find reasonable minds could differ as to tire conclusions drawn from tire evidence, summary judgment must be denied.” Bank v. Parish, 298 Kan. 755, Syl. ¶ 1, 317 P.3d 750 (2014).
If the moving party shows the absence of facts to support an essential element of the nonmoving party’s claim, that nonmoving party “ ‘has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case.’ ” U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 556, 205 P.3d 1245 (2009) (quoting Hurlbut v. Conoco, 253 Kan. 515, 520, 856 P.3d 1313 [1993]).
Discussion
To prevail on a medical malpractice claim, a plaintiff must establish: (1) The health care provider owed the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injuiy; (2) the provider breached this duty or deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the breach of the standard of care. Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010). The only issue in this appeal concerns the proximate cause element, which we have defined as a cause that “in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injuiy and without which the injuiy would not have occurred, tire injury being die natural and probable consequence of the wrongful act.” 290 Kan. at 420.
There are two components of proximate cause: causation in fact and legal causation. To establish causation in fact, a plaintiff must prove a cause-and-effect relationship between a defendant’s conduct and the plaintiff s loss by presenting sufficient evidence from which a jury can conclude that more likely than not, but for defendant’s conduct, the plaintiff s injuries would not have occurred. To prove legal causation, tire plaintiff must show it was foreseeable that the defendant’s conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes was foreseeable. 290 Kan. at 420.
The district court and the Court of Appeals held there was insufficient evidence of causation based on plaintiff s failure to put forth evidence on summary judgment that Rosenquist’s alleged deviation from tire standard of care caused Drouhard’s death. They also noted the treating physicians at Via Christi did not rely on Rosenquist’s evaluation of the CT scans. Drouhard-Nordhus, 2013 WL 5737363, at *5-6. Both of these points concern causation in fact, i.e., but for Rosenquist’s alleged negligence, Drouhard would not have died. We consider first plaintiffs argument that Glick’s opinion establishes the requisite causation in fact.
Claim that RosenquisCs evaluation caused the 'patient’s death
Plaintiff relies on Glick’s deposition testimony that
“more likely an ultrasound than a HIDA scan would have been the appropriate follow-up for what I saw on the CT scan. But based on what I saw on the CT scan, I mean, 1 would think it would be very reasonable to do emergency surgery and not even do any further testing to be honest.” (Emphasis added.)
She further refers us to Glick’s conclusion in his written report that a correct diagnosis “would have resulted in a stat ultrasound and/ or HIDA scan when Mr. Drouhard was in stable condition and appropriate and life-saving intervention-should then have been administered.” (Emphasis added.)
Glick’s testimony may be sufficient to establish that a different evaluation would have resulted in a different diagnostic test, i.e., an ultrasound or earlier HIDA scan. But to establish the final link in the causation chain, plaintiff must show those tests would have resulted in a treatment that would have prevented Drouhard’s death. The references to “life-saving intervention” and “emergency surgery” are speculative without some additional facts or details regarding those treatments and their potential outcomes. And Glick’s written report does not supply those additional facts or details.
During his deposition, Glide characterized his opinion, stating:
“I must say my focus on this case is what the CT scan showed and what the report showed. That’s it. I’m not going to speak about outcomes or causation. I’m testifying strictly on what the standard of care required for the radiologist to say about that specific CT scan.” (Emphasis added.)
And when defense counsel sought clarification, asking whether Glick was prepared to give causation opinions, Glide responded:
“Well, I can give causation opinions only as to what I believe the CT scan showed with a high degree of medical certainty, and assuming that had—and I can say that—based on what I saw on the outcome, that my opinion, more likely than not, is that what was shown on that CT scan basically was responsible for the outcome.
“But I am not a pathologist and I’m not a clinician, but I can put two and two together and say what I think is going on in the CT scan and what I saw from the autopsy report are directly related. As a physician I can say this, but I’m not a surgeon and I’m not a pathologist.” (Emphasis added.)
After reviewing Glide s report and his testimony, the Court of Appeals held that plaintiff failed to establish causation in fact through expert evidence. See Drouhard-Nordhus, 2013 WL 5737363, at *5 (“Said differently, a reviéw of Dr. Glick’s expert report does not reveal any explicit link .... ”). The panel then used Glick’s deposition testimony cited above to bolster that conclusion. See Drouhard-Nordhus, 2013 WL 5737363, at *5-6 (“To the contrary, Dr. Glick admitted in his deposition that he did not intend to testify about a causal link.”).
But the panel did not, as plaintiff now claims on review, reject Glick’s opinions because he refused to consider himself to be qualified to offer expert testimony on causation. That very well may have been error if that was what the panel actually had done. See George v. Pauly, 30 Kan. App. 2d 444, 453, 45 P.3d 1 (2001) (doctor is not qualified by training and experience to characterize the nature or proper use of his medical opinions in a court of law). Plaintiff mischaracterizes the panel’s holding in this regard.
Plaintiff needed expert medical opinion testimony to show there was a treatment approach that would have prevented Drouhard’s death and tie the failure to pursue that approach to Rosenquist’s allegedly negligent CT scan evaluation. Glick’s generalized references to an “appropriate and life-saving intervention” or that the “CT scan basically was responsible for the outcome” were inadequate to meet plaintiff s causation burden. Glick does not identify the life-saving interventions, and, more importantly, he does not explain how those interventions would have been effective in saving the patient’s life. Similarly, attributing what was shown on the CT scans as being responsible for the patient’s death does nothing more than identify the probable cause of death. It does not establish that, but for the alleged negligence by Rosenquist, the patient would be alive.
Reliance on Rosenquist’s CT scan evaluation
We also agree with the panel that plaintiff failed to show the treating physicians relied on Rosenquist’s read of the CT scans. See Drouhard-Norchis, 2013 WL 5737363, at *6. We note plaintiff did not controvert the following facts: (1) Rosenquist’s written reports were not available to the Via Christi physicians at any time; (2) Glide agreed the Via Christi physicians did not rely on what Rosenquist reported, or even what Wedman, the physician assistant, had reported, but rather reviewed the CT scans independently and with other radiologists; (3) Glick conceded he did not know whether the health care providers at Via Christi ever saw Rosenquist’s written report; and (4) Glide admitted there was nothing in the records that led him to believe the health care providers at Via Christi relied “in any way, shape or form’’ on the verbal report given by Rosenquist.
Plaintiff seems to argue these uncontroverted facts are irrelevant because plaintiff is not required to demonstrate the subsequent treating physicians relied on Rosenquist’s evaluation of the CT scans. Plaintiff cites Munoz v. South Miami Hospital, 764 So. 2d 854 (Fla. Dist. App. 2000) and Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014). Roth Munoz and Saunders address admission of a subsequent treating physician’s testimony about what he or she would have done if the previous physician had not been negligent.
In Munoz, an obstetrician noted a condition during a prenatal ultrasound that went untreated after delivery, causing the child kidney damage. Plaintiffs alleged the obstetrician violated the standard of care by failing to directly inform the infant’s pediatrician of the sonogram results. But the pediatrician testified he was told about the condition by the infant’s parents and grandparents and would not have changed the treatment if the obstetrician had also told him. On the basis of these statements, the trial court granted summary judgment to the obstetrician due to the lack of a causation between the obstetrician’s failure to inform the treating physician of the sonogram results and the child’s injuries. But the Munoz majority concluded the treating physician’s testimony could not conclusively establish the lack of causation and reversed the summary judgment. 764 So. 2d at 856-57.
The Florida Supreme Court recently approved of the result in Munoz in Saunders, 151 So. 3d at 442. There, a neurologist introduced into evidence the subsequent treating neurosurgeon’s testimony that he would not have treated plaintiff differently even if the neurologist had submitted a test plaintiff alleged was required. Saunders, 151 So. 3d at 438. The Florida Supreme Court held “a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” 151 So. 3d at 442.
But these Florida cases are inapposite because plaintiff is not alleging Rosenquist deviated from the standard of care by not directly contacting Beamer, and Rosenquist is not seeking to introduce evidence that the subsequent treating physicians would not have treated Drouhard differently if Rosenquist had properly diagnosed the CT scans. As a factual matter, Rosenquist simply argues his read of the CT scan is irrelevant to the subsequent treatment because the treating physicians did not rely on it, and the uncontroverted facts bear this out.
The district court correctly granted judgment for Rosenquist because the facts as set out on summary judgment demonstrate plaintiff failed to establish causation, an essential element of plaintiff s medical malpractice claim, by failing to come forward with evidence that the patient would not have died but for Rosenquist’s alleged breach of the standard of care.
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Leben, J.:
Under the Kansas sentencing guidelines, the more serious a defendant’s past offenses are, the greater tire presumptive sentence if the defendant commits a new felony offense. After Michael Pearce, Jr., was convicted of his fifth burglary, however, the district court did not include Pearce’s past residential burglary—a person felony—when calculating his criminal-history score because the court had used that conviction to apply a statute that makes prison the default sentence for recidivist burglars.
The State has appealed, contending that the district court erred by excluding the prior residential burglary when determining Pearce’s criminal-history score. The defendant successfully argued in the district court that K.S.A. 2013 Supp. 21-6810(d)(9) prevents the court from counting this offense.
But that statute excludes prior convictions only when “they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction.” K.S.A. 2013 Supp. 21-6810(d)(9). None of those criteria were met here: the past offense did not change the severity level of this offense (severity-level 7), did not change the offense from a misdemeanor to a felony, and was not required for conviction of the current offense. K.S.A. 2013 Supp. 21-6810(d)(9) goes on to state that “[e]xcept as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.) Because no statutory exception applied to Pearce’s prior residential-burglary conviction, the district court should have considered it when determining Pearce’s criminal-history score, which determines the length of his presumptive prison sentence.
Factual, Procedural, and Legal Background
In late September or early October 2012, Pearce and another man broke into a building in Miami County and stole an all-terrain vehicle and related equipment. When police questioned him, Pearce confessed to the burglary and theft and offered to return some of the stolen property.
Under a plea agreement in June 2013, Pearce pled guilty to burglary of a dwelling, a severity-level-7 person felony, and felony theft (property valued at $1,000 or more), a severity-level-9 nonperson felony. The State agreed to dismiss a criminal-damage-to-property charge and an unrelated criminal case against him.
Pearce had six prior convictions—two misdemeanor thefts and four burglaries: three burglaries of a-nondwelling, which are nonperson felonies, and one residential burglary, a person felony. All of the convictions were from 2012.
A defendant’s pxior convictions are important because Kansas uses sentencing guidelines when determining sentences on felony offenses. Those guidelines are based on two major factors—the severity level of the offense and the criminal-history score of the offender. The more severe the offense, the greater the potential prison sentence. Similarly, the greater the defendant’s criminal-history score, the greater the potential prison sentence. See K.S.A. 2013 Supp. 21-6804(a).
The criminal-histoiy-score range runs from A, the most serious (applicable to a person with three or more person felonies), to I, the least serious (applicable to a person with no more than one misdemeanor conviction). See K.S.A. 2013 Supp. 21-6809. If all of Pearce’s prior convictions are used to determine his criminal-his-toiy score, he would be in category C, applicable to a person with at least one person and one nonperson felony. But if his prior residential-burglary conviction is excluded, his criminal-history category drops to E, which applies to a person with three or more prior felonies but no person felonies.
An additional statute can affect the sentence of a recidivist burglar like Pearce. Before tire statute was enacted, the presumptive sentence for a nonresidential burglary (a nonperson felony) for a defendant with no person-felony convictions was probation—no matter how many burglaries the defendant had committed. For example, even with a conviction on more than a dozen charges for nonresidential burglary, theft, and criminal damage to property, a court was required to enter a departure sentence to send a defendant to prison instead of placing him or her on probation. See State v. Snow, 40 Kan. App. 2d 747, 748-50, 195 P.3d 282 (2008), rev. denied 289 Kan. 1285 (2009). The district court may enter a dispositional-departure sentence in such cases only when substantial and compelling reasons support the departure. 40 Kan. App. 2d at 756-57.
The legislature addressed the case of the recidivist burglar with a special sentencing provision enacted in 2008, eliminating presumptive-probation sentences for burglars who reoffend. See L. 2008, ch. 183, sec. 4, codified at K.S.A. 2009 Supp. 21-4704(1). The provision is now found in K.S.A. 2013 Supp. 21-6804(1); under it, anyone who commits a residential- burglary has a presumptive prison sentence if that person has previously committed any burglary—residential or otherwise.
In the district court, Pearce argued that one of his past burglary convictions must be used to trigger the recidivist-burglar penalty and cannot also be used in calculating his criminal-history category. In support, he cited K.S.A. 2013 Supp. 21-6810(d)(9), which provides that a conviction used to “enhance the severity level” of the current crime is not counted for criminal-history purposes. The defendant then argued that although any one of die burglary convictions would have triggered the recidivist-burglar prison sentence, the residential-burglary conviction should be used for that purpose because of the rule of lenity, under which ambiguities in criminal statutes are construed in favor of the defendant.
The State’s response accepted the defendant’s presumption that one of the past burglaries had to be excluded but argued that “the prior conviction removed from scoring should be the one that has the least [effect] on a defendant’s criminal history.” The State argued that the residential-burglary conviction, Pearce’s only person-felony conviction, thus should still be scored.
The district court summarized the attorneys’ arguments as “a debate ... as to what was the appropriate crime to throw [out]” in determining the criminal-histoiy category. The court said that it found the defendant’s argument “more compelling” because “the statute has to be construed in favor of the Defendant.” By excluding the residential-burglaiy conviction, Pearce’s criminal-history category was E rather than C. The sentencing range for Pearce’s severity-level-7 burglary conviction in this case at category E ranged from 19 to 23 months in prison, while the sentence for a defendant in categoiy C ranged from 25 to 29 months in prison. See K.S.A. 2013 Supp. 21-6804(a).
The district court sentenced Pearce to 21 months in prison on the burglary conviction and 6 months in prison for theft, with the sentences to run concurrently with one another, for a controlling sentence of 21 months in prison. The court denied Pearce’s motion for a dispositional-departure sentence to probation instead of prison.
Analysis
On appeal, both parties reprise their arguments. Both sides agree on what statutes apply: K.S.A. 2013 Supp. 21-6804(1), the recidivist-burglar provision, and K.S.A. 2013 Supp. 21-6810(d)(9), which excludes some convictions when scoring a defendant’s criminal history.
But neither party ties the argument to the words found in these statutes. When one does so, the answer here is quite clear.
We start with K.S.A. 2013 Supp. 21-6810(d)(9). It establishes a general rule under which all convictions are scored unless excluded, and it excludes only convictions that enhance the severity level of the crime, change the crime from misdemeanor to felony, or constitute an element of the offense:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” K.S.A. 2013 Supp. 21-6810(d)(9).
We can quickly see that none of the conditions for exclusion are met in Pearce’s case. His offense was a severity-level-7 felony, and neither its severity level nor its felony status was impacted by any of his past convictions. See K.S.A. 2013 Supp. 21-5807(a)(l), (c)(1)(A). Nor is an element of the offense (burglary) having committed a prior burglary. See K.S.A. 2013 Supp. 21-5807(a)(l). So none of his past burglary convictions would be excluded from criminal-history scoring under the very specific words used in the statute.
Even so, Pearce cites a Kansas Supreme Court case, State v. Zabrinas, 271 Kan. 422, 443, 24 P.3d 77 (2001), for tire proposition that prior convictions may not be scored “if they enhance the applicable penalties of the present conviction.” Prison is obviously a greater sanction than probation, so Zabrinas seems to support Pearce’s position. Once again, though, Pearce fails to trace the Zabrinas holding to the language of the applicable statute. When we do so, we see that the statutory language when Zabrinas was decided differs from today’s statute.
The issue in Zabrinas involved a persistent sex offender; a special sentencing statute provided for doubling the prison term for certain recidivist sex offenders. The Kansas Supreme Court agreed with Zabrinas’ argument that “tire conviction used to find that [Za-brinas] was a persistent sex offender may not also be used to calculate his criminal history.” 271 Kan. at 443. But it did so under the language of the predecessor statute to the present K.S.A. 2013 Supp. 21-6810(d)(9), which provided an exclusion not only when the prior conviction enhanced the severity level of the crime but also when it enhanced the applicable penalties:
“ ‘Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.’ ” (Emphasis added.) Zabrinas, 271 Kan. at 443 (quoting K.S.A. 21-4710[d][ll]).
The Zabrinas opinion had specifically relied upon and approved the reasoning of an opinion of this court on the same issue, State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123, rev. denied 269 Kan. 940 (2000). See Zabrinas, 271 Kan. at 443-44. Our court pegged its ruling squarely on the “applicable penalties” language then in tire statute;
“Here, the statute flatly prohibits use of prior convictions to determine the criminal history category ‘if they enhance the severity level or applicable penalties.’ There can be no doubt that classification as a persistent sex offender enhances the applicable penalties . . . .” 27 Kan. App. 2d at 64-65.
But the legislature eliminated the “applicable penalties” language in 2010. See L. 2010, ch. 36, sec. 1, effective April 8, 2010. Zabrinas and Taylor applied the older statutory language, not the current version, K.S.A. 2013 Supp. 21-6810(d)(9).
We have now resolved the primary issue before us: The district court erred when it excluded one of Pearce’s burglary convictions when determining his criminal-history category. We must also address one other issue: Is the answer to the main question of statewide importance? The State cited K.S.A. 2013 Supp. 22-3602(b)(3), its right to appeal “upon a question reserved,” as the sole basis for its appeal in both its notice of appeal and its docketing statement. Such an appeal is heard only to address a matter of some statewide importance, not merely to show that the district court was wrong in a particular case. In re E.F., 41 Kan. App. 2d 860, Syl. ¶ 1, 205 P.3d 787 (2009). Pearce argues that the determination of his criminal-history score did not present an issue of statewide importance.
But no appellate decisions discuss the elimination of the “applicable penalties” language from the statute on how to score a defendant’s criminal history. And many cases have relied upon that language in holding that certain convictions must be excluded. See Zabrinas, 271 Kan. at 443-44; accord State v. Arnett, 290 Kan. 41, 48-49, 223 P.3d 780 (2010) (holding that forgery conviction used to increase mandatory-minimum sentence could not be counted to score criminal history); State v. Gilley, 290 Kan. 31, 38-39, 223 P.3d 774 (2010) (same); State v. Luttig, 40 Kan. App. 2d 1095, 1098-99, 199 P.3d 793 (2009) (same); Taylor, 27 Kan. App. 2d at 64-65. Our opinion in Pearce’s case alerts the bench and bar that these cases—decided based on statutory language no longer in place—may no longer be good law. Our opinion also serves as a reminder that when determining an issue governed by statute, you must start with the language of the statute.
The appellate court’s ruling on a question reserved does not have any effect on the defendant in the case. In re E.F., 41 Kan. App. 2d 860, Syl. ¶ 2. Accordingly, Pearce’s sentence is not affected by this decision.
We sustain the State’s appeal on the question reserved. | [
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Buser, J.:
Nicola Pfeifer appeals the district courts judgment affirming the administrative suspension of her driving privileges based on her refusal to submit to a breath or blood test to determine the presence of alcohol or drugs (BAT). Pfeifer contends the district court improperly admitted in evidence the signed and properly completed Officers Certification and Notice of Suspension (DC-27 form) to prove the certifying officer had reasonable grounds to request the BAT because that officer did not testify at the district court trial.
After carefully considering this matter, we hold that pursuant to K.S.A. 2015 Supp. 8-1002(b), in all proceedings brought under the Kansas Implied Consent Law, K.S.A. 2015 Supp. 8-1001 et seq., a signed and properly completed DC-27 form, or a copy or photostatic reproduction thereof, shall be admissible in evidence to prove the statements contained therein without the necessity for testimony by the certifying law enforcement officer.
Given this holding, we conclude the district court did not err in admitting the DC-27 form as evidence to prove the statements contained therein by the certifying officer that he had complied with the requirements of K.S.A. 2015 Supp. 8-1001(b) and (k) prior to requesting a BAT from Pfeifer which she refused. Accordingly, we affirm the district court’s order affirming the administrative suspension of Pfeifer’s driving privileges.
Factual and Procedural Background
On December 28, 2013, Officer Brenden Hauptman of the Hays Police Department served a signed and properly completed DC-27 form on Pfeifer. This action initiated suspension proceedings by the Division of Motor Vehicles of the Kansas Department of Revenue (KDR) against Pfeifer’s driver’s license based on her refusal to submit to a BAT. See K.S.A. 2015 Supp. 8-1002(a)-(f).
The DC-27 form contained several statements certified by Officer Hauptman explaining the basis for his request for testing. In particular, the officer indicated that reasonable grounds existed to believe that Pfeifer had been operating a vehicle while under the influence of alcohol and/or drugs on December 28, 2013, in Ellis County, Kansas. On the DC-27 form, Officer Hauptman stated that he stopped Pfeifer’s vehicle for a traffic violation, an improper left turn, and after encouiitering Pfeifer he noticed that she had bloodshot eyes, poor balance or coordination, and she exhibited an odor of alcoholic bevelages and marijuana. In addition, Pfeifer admitted that she consúnied “alcohol/drugs.” Officer Hauptman stated that Pfeifer failed sdbriety tests and a preliminary breath test. After placing Pfeifer under arrest, or otherwise taking her into custody, and providing her With tire appropriate oral and written notices required by K.S.A. 2015 Supp. 8-1001(k), Officer Haupt-man certified that he requested Pfeifer take a BAT to determine the presence of alcohol or drugs and Pfeifer refused.
On the DC-27 form, below Officer Hauptman’s statements, was die following certification: “I hereby certify to the Division of Vehicles that each of the statements I have initialed above are true and accurate, under penalty of K.S.A. [2015 Supp.] 8-1002(b), and amendments thereto.” Officer Haüptman’s signature appeared below the statement of certification. Of note, K.S.A. 2015 Supp. 8-1002(b) provides: “Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.”
Based upon Officer Hauptmans certified statements contained within the DC-27 form, and after Pfeifers request for a hearing regarding the suspension of her driving privileges, the KDR conducted an administrative hearing on March 24, 2014. See K.S.A. 2015 Supp. 8-1020. According to the administrative hearing officers notes, prior to the hearing Pfeifer asked the KDR to subpoena Officer Hauptman and the officer appeared and testified at the hearing.
At the administrative hearing, Pfeifer contested the suspension for several reasons, including that Officer Hauptman lacked reasonable grounds to request a BAT. At the conclusion of the hearing, tire hearing officer issued an order affirming the suspension of Pfeifers driving privileges. In particular-, the hearing officer found that Officer Hauptman had reasonable grounds to believe Pfeifer was operating or attempting to operate a vehicle while under the influence of alcohol and/or drugs, she had been placed under arrest or in custody, and she refused to submit to and complete a BAT as requested by the officer.
On April 7,2014, Pfeifer filed a petition for judicial review in the Ellis County District Court challenging the KDRs suspension of her driving privileges. See K.S.A. 2015 Supp. 8-259; K.S.A. 77-601 et seq. In seeking review, Pfeifer, as the licensee, had “the burden to show that the decision of the agency should be set aside.” K.S.A. 2015 Supp. 8-1020(q). Relevant to this appeal, in her petition Pfeifer reiterated that Officer Hauptman lacked reasonable grounds to request a BAT.
Prior to the de novo trial in district court, the KDR notified Pfeifer s attorney, in writing, that the agency would not be issuing a subpoena for Officer Hauptman and three other officers scheduled for similar trials on the same date. The KDRs attorney advised Pfeifer s attorney that he would need to issue a subpoena for Officer Hauptman if he desired the officers attendance at trial. Pfeifer did not issue a subpoena for Officer Hauptman, however, and the officer did not appear at Pfeifer s trial.
Trial was held on August 19, 2014. By agreement of the district court and both counsel, Pfeifers case was heard with three other drivers license suspension cases whose licensees were also represented by Pfeifers attorney. This combined trial procedure was employed to facilitate addressing the admissibility of the DC-27 forms, which was the relevant legal issue in all four cases.
At trial, Pfeifers attorney contended the DC-27 form was not admissible for any purpose other than establishing tire district courts jurisdiction. He noted, however, that if the district court found the DC-27 form was admissible as evidence, Pfeiffer and the other licensees “would then stipulate that there would be reasonable grounds” so they could appeal the adverse evidentiary ruling and “save the [district] court the trouble” of having each licensee testify.
In response, the KDR contended that under K.S.A. 2015 Supp. 8-1002(b) the DC-27 form was admissible as evidence in all proceedings brought under the Kansas Implied Consent Law. The KDR’s attorney argued that because the licensee has the burden of proof in driver’s license suspension proceedings and the issue is whether the officer had reasonable grounds to believe the licensee was operating a vehicle under the influence, a licensee who opts not to subpoena the officer does so at his or her “own peril.”
After considering the parties’ legal arguments, the district court, relying upon State v. Baker, 269 Kan. 383, 2 P.3d 786 (2000), and Moore v. Kansas Dept. of Revenue, No. 107,810, 2013 WL 5925901 (Kan. App. 2013) (unpublished opinion), held tire DC-27 form was admissible as evidence at trial without testimony from the certifying officer. The district judge explained that in Baker our Supreme Court stated the “’DC-27 form contains certifications and is admissible in evidence to prove the statements contained therein.’ That’s the Supreme Court’s words.” The district judge also noted the Court of Appeals unpublished opinion in Moore “was on this exact same point and followed Baker.” The district judge concluded, “So the state of the authority presently is such that the court feels the position adopted by [the] KDR is correct and that the DC-27 form is admissible.”
The district court affirmed the KDR’s administrative suspension of Pfeifers driving privileges based on the parties’ stipulation that if the court admitted the DC-27 form without testimony by Officer Hauptman, the certified factual statements were sufficient to establish the officer had reasonable grounds to request testing.
Pfeifer filed a timely appeal.
Admissibility of the DC-27 Form
On appeal, Pfeifer contends the district court improperly admitted the DC-27 form as evidence at trial to prove that Officer Hauptman had reasonable grounds to believe she was operating a motor vehicle under the influence of alcohol and/or drugs. In particular, Pfeifer claims the DC-27 form is only admissible as “a procedural or charging document” when the certifying officer is not present and available to testify at trial. According to Pfeifer, although the DC-27 form is admissible under K.S.A. 2015 Supp. 8-1002(b), the form is more akin to “a complaint or officers affidavit in support of a[n] arrest warrant than it is testimonial evidence at a trial de novo.” As a result, Pfeifer insists the district court erred when it interpreted K.S.A. 2015 Supp. 8-1002(b) to allow “each and eveiy one of the hearsay statements or allegations made by the officer in the DC-27 form [to] be taken as true during the trial de novo . . . when the certifying officer fail[ed] to appear to testify.” Of note, Pfeifer does not allege the DC-27 form certified by Officer Hauptman was not signed, improperly completed, defective, or insufficient in any way.
In response, the KDR cites the plain language of K.S.A. 2015 Supp. 8-1002(b) and the Baker and Moore cases relied on by the district court as legal authority that the DC-27 form is admissible in evidence without the necessity of testimony by the certifying officer in all proceedings brought under the Kansas Implied Consent Law.
The district court concluded that under the plain language of K.S.A. 2015 Supp. 8-1002(b) the DC-27 form signed and properly completed by Officer Hauptman was admissible in evidence at Pfeifers trial to prove the statements contained within the form. As a result, the district court found that Officer Hauptman s testimony was not necessary for admission of the DC-27 form or to prove the certified statements at trial.
Multiple inquiries are involved when a party challenges the admission or exclusion of evidence on appeal. See State v. Bowen, 299 Kan. 339, 348-49, 323 P.3d 853 (2014). A courts consideration of the admissibility of evidence requires the application of statutory rules controlling the admission and exclusion of certain types of evidence, which are applied as a matter of law or as an exercise of the trial courts discretion, depending on the applicable rule. 299 Kan. at 348. When, as in this case, the issue on appeal involves the adequacy of the legal basis for a district courts ruling on the admissibility of evidence, we employ de novo review. 299 Kan. at 349. Similarly, if the question of whether the district court complied with specific statutory requirements for admitting evidence requires interpretation of a statute, our review is unlimited. Schlaikjer v. Kaplan, 296 Kan. 456, 463-64, 293 P.3d 155 (2013).
On appeal, Pfeifer and the State focus their arguments on subsection (b) of K.S.A. 2015 Supp. 8-1002. This statutory subsection relates to subsection (a), which provides that the officers certification “shall be prepared” whenever a BAT is requested and the licensee fails or refuses the test. K.S.A. 2015 Supp. 8-1002(a).
Depending on whether the licensee refuses the test or fails the test, the officer must certify various statements. See K.S.A. 2015 Supp. 8-1002(a)(l), (2), and (3). As in the case on appeal, when there is test refusal, the officer must certify that reasonable grounds existed to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both; the person was arrested or placed in custody; an officer presented oral and written notices as required by K.S.A. 2015 Supp. 8-1001(k); and the person refused to submit to and complete a test as requested by the officer. K.S.A. 2015 Supp. 8-1002(a)(l).
Of particular importance to the issue on appeal, K.S.A. 2015 Supp. 8-1002(b), among other things, authorizes how the officers certification or DC-27 form may be used in proceedings under the Kansas Implied Consent Law. The statutory subsection provides:
“For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.” K.S.A. 2015 Supp. 8-1002(b).
In reviewing the meaning of this statute we are guided by rules of statutory construction. The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). In attempting to ascertain legislative intent, an appellate court first considers the statutory language enacted, giving common words their ordinary meanings. Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014).
The language of K.S.A. 2015 Supp. 8-1002(b) is straightforward. First, the statute provides that certification is complete upon the officer’s signing of the document. For clarity, the statute then provides a list of typical acts of attestation which are specifically not mandated in order to complete the officer’s certification. The importance placed upon the officer’s truthful completion of the certification is apparent given the legislature’s imposition of criminal penalties for any officer who signs the certification knowing it to contain a false statement. In short, from this plain language of subsection (b) it is clear the legislature intended the officer’s certification to be truthful, verified, and effective upon signing.
Given this statutory context which reflects the importance of the officer’s certification in the scheme of the Kansas Implied Consent Law, we next consider the statutory language in subsection (b) critical to resolving the issue on appeal. That language sets forth the uses to be made of the officer’s certification or DC-27 form: “The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act.” K.S.A. 2015 Supp. 8-1002(b). Once again, the language is plain and ordinary: The signed certification shall be admissible in evidence in all proceedings held pursuant to K.S.A. 2015 Supp. 8-1001 et seq. Moreover, an appellate court should refrain from reading something into a statute that is not readily found in its words. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Nowhere in K.S.A. 2015 Supp. 8-1002(b) does the legislature state or intimate that the certifying officer must testify at the proceedings in order to admit tire DC-27 form in evidence.
Proceedings under the Kansas Implied Consent Law include administrative hearings, K.S.A. 2015 Supp. 8-1020, and de novo trials conducted in accordance with the Kansas Judicial Review Act. See K.S.A. 2015 Supp. 8-259; K.S.A. 2015 Supp. 8-1020(o), (p); K.S.A. 77-601 et seq. In addition to the general language referencing "all proceedings” in K.S.A. 2015 Supp. 8-1002(b), in the case of administrative hearings, the officer’s certification is one document specifically allowed in evidence. K.S.A. 2015 Supp. 8-1020(a) and (e)(1). And the certifying officers attendance at the hearing is not required “unless requested by the licensee.” K.S.A. 2015 Supp. 8-1020(g).
Giving the common words in K.S.A. 2015 Supp. 8-1002(b) their ordinary meaning, we are persuaded that the legislature intended an officer’s certification or DC-27 form to be admissible in evidence in all administrative hearings and trials de novo under the Kansas Implied Consent Law.
In addition to a plain reading of the statute, the district court relied upon Baker and Moore as support for its interpretation of K.S.A. 2015 Supp. 8-1002(b). Notably, in her appellate brief, Pfeifer does not present argument contrary to either of these cases or the district court’s understanding of them. This omission is inexplicable, especially because Pfeifer s counsel represented the licensee in Moore and presented arguments in that case similar to those he makes in this appeal. Nevertheless, as the district court observed, Baker and Moore are instructive because both cases interpreted and applied K.S.A. 8-1002(b).
In Baker, the State charged the licensee with driving under the influence of alcohol in violation of K.S.A. 1999 Supp. 8-1567(a) (2). The arresting officer, however, failed to check the box on the DC-27 form certifying that probable cause existed to believe Baker was driving while under the influence. Due to this omission, the district magistrate judge suppressed tire results of Baker’s BAT, and the district court affirmed the suppression. On appeal, the State contended the arresting officer’s failure to properly complete the DC-27 form did not require suppression of Bakers BAT, and our Supreme Court agreed. 269 Kan. at 388.
The Supreme Court explained that the results of a BAT, or a refusal to submit to such a test, are admissible when the State meets the admissibility requirements set forth in K.S.A. 1999 Supp. 8-1001 and 8-1002. 269 Kan. at 388. According to the court: “The State may seek to establish a foundation for admission through the use of the completed DC-27 form, through competent testimony, or through a combination of the two.” 269 Kan. at 388. As a result, the Supreme Court held that an officers failure to check the appropriate box on the DC-27 form does not require suppression of the incriminating evidence. 269 Kan. at 387-88. Instead, such a failure results in “the form itself not being admissible to prove the statements that were not checked” and, thus, the State must “use actual competent testimony to meet the foundation requirements of K.S.A. 1999 Supp. 8-1002 in order for the blood alcohol test result or refusal to be admissible in evidence.” 269 Kan. at 387.
In reaching its decision, our Supreme Court offered the following interpretation of K.S.A. 1999 Supp. 8-1002, which was essential to its holding:
“The deficiency in this case falls under K.S.A. 1999 Supp. 8-1002, tire officers certification. We have recognized these matters are foundational in nature and have an evidentiary quality to them. [Citations omitted.] The DC-27 form contains the certifications required by K.S.A. 1999 Supp. 8-1002. Once the certification requirements are completed, the DC-27 form is admissible as evidence to prove the statements contained therein. See K.S.A. 1999 Supp. 8-1002(b). Thus, the DC-27 form, if properly completed, is a tool which satisfies the foundational requirements for admission of the results of a defendant’s blood alcohol test or refusal to take the test. However, its proper completion is not an absolute requirement for such admission.” (Emphasis added.) 269 Kan. at 387.
In Moore, the Court of Appeals relied on our Supreme Courts interpretation of K.S.A. 1999 Supp. 8-1002(b) in Baker to analyze whether the factual statements contained within a DC-27 form are admissible as evidence at trial without the testimony of the certifying officer. See Moore, 2013 WL 5925901, at *4-6. In Moore, the certifying officer, despite having been served with a subpoena, failed to appear at trial. The district court reversed the administrative order suspending Moore’s driving privileges because it found the factual statements contained in the DC-27 form were not admissible without additional foundation to show the officer had reasonable grounds to believe Moore was operating a vehicle while under the influence of alcohol.
The KDR appealed, and our court determined that the “plain meaning” of K.S.A. 2010 Supp. 8-1002(b), as interpreted by Baker, expressed “the legislatures determination that an officers DC-27 certification shall be admissible as evidence in all proceedings provided for in the Implied Consent Act relating to alcohol testing for driving under the influence of drugs or alcohol.” (Emphasis added.) 2013 WL 5925901, at *5. Because Moore did not complain that the DC-27 form was “defective or deficient in any way,” our court held the district court erred, as a matter of law, when it refused to admit the DC-27 form in evidence at Moores trial. 2013 WL 5925901, at *6. Accordingly, the case was reversed and remanded.
Importantly, numerous panels of our court in unpublished opinions have followed the guidance in Baker and Moore to resolve the precise legal issue Pfeifer raises in this appeal. See Siglinger v. Kansas Dept. of Revenue, No. 113,417, 2015 WL 8154644, at *1-2 (Kan. App. 2015) (unpublished opinion), petition for rev. filed December 16, 2015; Urban v. Kansas Dept. of Revenue, No. 113,415, 2015 WL 8192318, at *1-2 (Kan. App. 2015) (unpublished opinion), petition for rev. filed December 16, 2015; Werner v. Kansas Dept. of Revenue, No. 112,447, 2015 WL 8176441, at *1-2 (Kan. App. 2015) (unpublished opinion), petition for rev. filed December 16, 2015; Miller v. Kansas Dept. of Revenue, No. 112,924, 2015 WL 7434008, at *1-2 (Kan. App. 2015) (unpublished opinion), petition for rev. filed December 16, 2015; Beims v. Kansas Dept. of Revenue, No. 112,138, 2015 WL 6834323, at *1-2 (Kan. App. 2015) (unpublished opinion), petition for rev. filed December 4, 2015; Alt v. Kansas Dept. of Revenue, No. 112,448, 2015 WL 6621620, at *2-4 (Kan. App. 2015) (unpublished opinion), petition for rev. filed November 25, 2015.
For example, in Miller our court held:
“It is clear to us, particularly in light of [Baker and Moore], that K.S.A. 2014 Supp. 8-1002(b) unambiguously allows for exactly what the district court did in this case: permit die admission of a properly completed DC-27 form widiout additional foundation having to be laid and allow die statements contained therein to be used to establish that the officer had reasonable grounds to believe that Miller was operating his vehicle while under the influence of alcohol.” 2015 WL 7434008, at °2.
Although these unpublished opinions, including Moore, are not binding precedent, we find their reasoning persuasive given the plain language of K.S.A. 2015 Supp. 8-1002(b) and our Supreme Court’s interpretation of that statutory language in Baker.
Accordingly, we hold that pursuant to K.S.A. 2015 Supp. 8-1002(b), in all proceedings brought under the Kansas Implied Consent Law, K.S.A. 2015 Supp. 8-1001 et seq., a signed and properly completed Officers’ Certification and Notice of Suspension, Form DC-27, or a copy or photostatic reproduction thereof, shall be admissible in evidence to prove the statements contained therein without the necessity for testimony by the certifying officer.
Applying this holding to the facts of this case, we conclude the district court properly applied K.S.A. 2015 Supp. 8-1002(b) and did not err in admitting the DC-27 form certified by Officer Hauptman as evidence to prove the statements contained therein at trial.
Finally, the district court affirmed the KDR’s administrative suspension of Pfeifer s driving privileges based on the parties’ stipulation that if the court admitted the DC-27 form without testimony by Officer Hauptman, the certified factual statements were sufficient to establish the officer had reasonable grounds to request testing. Given the district courts proper admission of tire DC-27 form and the parties’ stipulation, we affirm the district court’s order affirming the administrative suspension of Pfeifers driving privileges.
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Denied.
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The opinion of the court was delivered by
Biles, J.:
This appeal challenges the district court’s property division-in a divorce case. Our focus is on a document entided “Post-Nupt[i]al Agreement Dissolution of the Marriage,” which the attorney-husband drafted during the marriage, reserving most of tire assets for the wife. Husband now claims the agreement is void because of the lopsided property division, even though the agreement explicitly states it is “fair, just and reasonable, and comports with all legal requirements so as to be fully enforceable under the laws of the State of Kansas."
The district court agreed with the husband, voided the agreement, and allocated the couple’s assets based on the court’s own determination of what was just and reasonable under K.S.A. 60-1610(b)(1) (division of property when no agreement controls). The Court of Appeals reversed and restored the terms favoring the wife.
The panel reasoned that Kansas should recognize two types of postnuptial agreements: (1) separation agreements governed by K.S.A. 60-1610(b)(3); and (2) all others, which would be governed by a common-law rule adopted by the panel based on whether the spouses intended to remain married when entering into the agreement. The panel found the agreement at issue in this case was entered before the parties intended to divorce, so K.S.A. 60-1610(b)(3) was not applicable. In re Marriage of Traster, 48 Kan. App. 2d 356, 365-67, 291 P.3d 494 (2012). We granted review and now affirm in part and reverse in part the rulings by both lower courts.
We hold the couple’s agreement is controlled by K.S.A. 60-1610(b)(3), which requires a separation agreement to be incorporated into the divorce decree if the court finds it is “valid, just and equitable.” We hold further that the district court erred when it invalidated the agreement based on the public policy grounds that the disproportionate property division encouraged divorce. That common-law analysis was abrogated when the legislature adopted K.S.A. 60-1610(b)(3)’s “just and equitable” requirement. We remand the case to the district court for a more detailed review into whether the agreement is just and equitable under K.S.A. 60-1610(b)(3), given the considerations detailed in the agreement, the particular circumstances of the case, and this opinion.
Factual and Procedural Background
David and Debra Traster married in 1976. They have no children. David has been practicing law since 1981. Debra graduated from law school but never took the Kansas bar exam. She has had limited employment throughout the marriage and claims she is incapable of gainful employment due to a brain injury and the resulting impact on her mental health. The district court found Debra capable of sitting for the Kansas bar exam but incapable of being “employed as an attorney in the manner as most attorneys.”
During their marriage, the parties entered into two agreements concerning the division of their assets upon divorce. David drafted both agreements. The first was in the 198(1 s and was not admitted at trial. The parties agree its provisions were identical or nearly identical to the second agreement that was admitted into evidence and which presents tire central questions in this appeal. By its terms, the second agreement became effective upon David’s December 2004 signature. Its terms are important to our analysis, so they must be set out in detail.
The Trasters’ 2004 Agreement
The 2004 agreement acknowledges David was the scrivener and that Debra relied on his legal expertise and advice because she lacks “David’s practical experience with drafting and enforcing agreements.” It further acknowledges the couple’s assets “have been accumulated largely because of loans, gifts and payments from Debra’s parents.” It expressly states it is “fair, just and reasonable, and comports with all legal requirements so as to be fully enforceable under the laws of the State of Kansas.” It further states that neither Debra nor David have “current plans” to divorce, but it notes “the marriage has not always been idyllic and that significant problems and differences have arisen . . . from time to time.”
The agreement calls for the following unequal division of assets, as well as providing the rationale for that division:
“6. Distribution of Assets. It is acknowledged and agreed that all or nearly all of the accumulated Assets of the Parties have been contributed directly or indirectly to the marriage by . . . Debra’s parents. As an example, and widrout limitation, Debra’s parents have given educational support and vehicles at prices substantially below market value or as outright gifts. The Assets contributed by David’s career and employment have been used by the Parties for maintenance of their lifestyle. For this reason, and because Debra will have no Social Security Benefits and, because of her age will have limited ability to obtain gainful employment in the event of a voluntary dissolution of the marriage by either party, and in the absence of any other agreement between the Parties executed with the same formality as this Agreement and which is in compliance with Paragraph 9. H, below, the Assets of the Parties should be and are to be divided and distributed between them as follows:
"A. To David: His personal belongings and effects, including his clothing, tools and guns, (Debra may elect to retain one of the Parties handguns of her choice.) and gifts and inheritances, if any, from David’s family. As of the date of this agreement, there have been no such gifts or inheritances.
“B. To Debra: All other Assets, both real personal and mixed which are owned by the Parties at the time any proceeding for dissolution of the marriage are instituted by either Party, including but not limited to, the Parties’ home, vehicles, personal property, accounts, funds, stocks, bonds, investments, buildings, contracts, leases, and any other Assets owned by the Parties. This grant shall apply to all Assets, whether or not enumerated herein and to all Assets regardless of when they are or were acquired by the Parties, including after acquired property.”
The agreement also contains a severability provision, stating that if “one or more provisions of this Agreement shall be held invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions
Finally, the agreement prohibits either party from seeking any court order contrary to its terms and enforces that prohibition by stating that each party “agrees to indemnify the other for any loss, cost or expense (including attorney fees and expenses) incurred because a Party seeks to obtain judicial modification of this Agreement.”
The same day David signed the 2004 agreement the parties also executed a notarized document entitled “Post-Nupt[i]al Agreement Contract for Will,” which similarly divided the couple’s property, except that assets reserved to David included his individual retirement accounts, his law firm’s 401(k) account, and all automobiles owned by David and Debra. It likewise acknowledged Debra’s parents’ financial contributions and the couple’s desire for those contributions to remain with her family and similarly stated that its agreed-upon property distribution was “fair, just and reasonable, and comports with all legal requirements.”
The District Court Proceedings
David petitioned for divorce in June 2007 based on incompatibility. This triggered K.S.A. 23-201, which gives each spouse a common interest in the marital property until the district court finalizes the property division under K.S.A. 60-1610. In his petition, David did not refer to or provide the court with the couple’s 2004 agreement.
In June 2010, Debra filed a motion for partial summary judgment seeking a ruling that the 2004 agreement was valid and enforceable and controlled disposition of the real and personal property in the divorce. David opposed this motion, setting the stage for the parties’ dispute.
The threshold issue was whether the agreement should be characterized as a separation agreement under K.S.A. 60-1610(b)(3), requiring a judicial determination that it met the statutory standard of being “valid, just, and equitable.” After a hearing, the district court held the agreement was a separation agreement under K.S.A. 60-1610(b)(3). The court set the matter for trial to determine if the contract was valid, just, and equitable based upon a full review of the parties’ assets.
The trial occurred in October 2010. At its conclusion, the district court held the agreement was invalid or void as against public policy because the court found the unequal property division promoted divorce by giving David a substantial incentive to end the marriage as soon as possible so he could accumulate his own assets. And on that same basis, the district court found the agreement to be “unreasonable and inequitable,” later characterizing it as “not fair and equitable.” In so ruling, the district court noted David would receive only 1.13 percent of the marital assets under the agreement, while Debra would receive 98.87 percent.
The district court then made its own “just and reasonable” property division as required by K.S.A. 60-1610(b)(l), the statute governing property division when tire parties have no agreement. The court awarded Debra spousal maintenance for 120 months and ordered David to maintain life insurance naming Debra as the beneficiaiy in an amount equal to the spousal maintenance owed. It declined to award Debra attorney fees.
The Court of Appeals Ruling
Debra appealed to the Court of Appeals. She argued tire district court erred by holding: (1) the agreement was a separation agreement under K.S.A. 60-1610(b)(3); (2) the agreement was void as against public policy or otherwise invalid; (3) the agreement was not fair and equitable, when the court looked beyond its stated terms; and (4) by declining to award attorney fees under the indemnity and severability clauses. Notably, Debra did not challenge the district court’s property division as an alternative argument if she did not prevail on her claim that the contract should be enforced. See In re Acquisition of Property by Eminent Domain, 299 Kan. 37, 49, 320 P.3d 955 (2014) (“[A]n issue not briefed by the appellant is deemed waived and abandoned.”).
The Court of Appeals reversed the district court. It held Kansas should recognize two distinct types of postnuptial agreements. The first was separation agreements governed by K.S.A. 60-1610(b)(3). In re Marriage of Traster, 48 Kan. App. 2d at 364. The second it identified as “postmarital agreements” to be governed by common-law principles articulated in the panel’s decision. 48 Kan. App. 2d at 371-73. The distinction for the panel was whether the spouses intended to remain married at the time the agreement was executed. In other words, a separation agreement controlled by K.S.A. 60-1610(b)(3) would be one entered only when the parties have an imminent intent to actually divorce or separate. 48 Kan. App. 2d at 365.
The panel rationalized treating all other postmarital agreements differently because it believed married couples who are not contemplating impending divorce are in a different bargaining position than couples who no longer intend to stay married. And unlike the arm’s length bargaining that occurs between spouses intending to divorce, the panel reasoned, spouses wanting to preserve their marriage share a “trusting and confidential” relationship that exposes them to a greater risk of unfair advantage in the bargaining process because: (1) “spouses who intend to stay married are unlikely to view the marital interest as distinct from their own interest;” and (2) “the spouse who has the stronger desire to preserve the marriage necessarily becomes more vulnerable to the financial demands of the other.” 48 Kan. App. 2d at 365-66.
The panel then developed and adopted a six-factor test derived from caselaw from other jurisdictions to decide if the 2004 agreement should be upheld. It also determined the district court record was sufficient to allow the panel to apply its test without remand for further factual findings. 48 Kan. App. 2d at 373. In the end, the panel concluded the agreement should be upheld and its provisions fully enforced. 48 Kan. App. 2d at 380.
Finally, after upholding the agreement as a postmarital agreement, the panel reversed the district court’s denial of Debra’s attorney fee claim and remanded that issue to the district court to calculate the appropriate fee based on the indemnity provision. 48 Kan. App. 2d at 381-82.
David petitioned this court for review. He argues the panel: (1) improperly interpreted K.S.A. 60-1610(b)(3) by construing the term “separation agreement” to exclude postnuptial agreements formed by parties who intended to stay married; (2) improperly engaged in unlimited appellate review instead of reviewing the trial court’s determinations for abuse of discretion; and (3) improperly created and employed the six-part test for determining the 2004 agreement’s fairness.
We granted review under K.S.A. 20-3018(b). See also K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review). We now reverse in part and affirm in part the rulings by both lower courts.
Is the Agreement a “separation agreement” GOVERNED BY K.S.A. 60-1610(b)(3)?
Our first consideration is whether the 2004 agreement is a “separation agreement” as that term is used and governed by K.S.A. 60-1610(b)(3). David contends it is and that the district court was correct when it decided it had to determine if the contract was “valid, just and equitable” under K.S.A. 60-1610(b)(3) before its terms could control the property division. But Debra argues the agreement is not a separation agreement and therefore not governed by K.S.A. 60-1610(b)(3). She contends the agreement is a postmarital agreement, as characterized by the Court of Appeals, because she and David intended to stay married when they executed it, and not governed by statute. And from that premise, she argues the legal question is what standard should be used to determine if a postmarital agreement is enforceable.
We agree with the district court that the Trasters’ 2004 agreement is a “separation agreement” under K.S.A. 60-1610(b)(3). Some contextual perspective is important.
Common-Law and Statutory Background
Under Kansas common law, agreements fixing property rights between spouses were governed by the same rules, whether executed before or after marriage. Fincham v. Fincham, 160 Kan. 683, Syl. ¶ 1, 165 P.2d 209 (1946). The common-law analytical tenets were stated as follows:
“The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out die intentions of die makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, aldiough a different rule obtains where the terms of the contract encourage a separation of die parties . . . .” 160 Kan. at 683, Syl. ¶ 1.
These common-law rules governed enforceability of agreements pertaining to property division in divorce proceedings until they were altered in 1963, when the legislature entered the arena by enacting two statutory subsections within K.S.A. 60-1610 (Corriclc 1964) as part of the then-new Code of Civil Procedure. L. 1963, ch. 303, sec. 60-1610. The first was subsection (b), which directed district courts to divide marital property “in a just and reasonable manner” in the absence of an agreement between the parties. See K.S.A. 60-1610(b) (Corrick 1964). Subsection (d), on the other hand, recognized the parties’ right to enter into separation agreements governing marital property division, stating: “If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree . . . .” See K.S.A. 60-1610(d) (Corrick 1964). The term “separation agreement” has not been defined by the legislature.
Following 60-1610’s enactment, this court decided two prenuptial agreement cases and continued to analyze the enforceability of those agreements using the common-law rule. See In re Marriage of Adams, 240 Kan. 315, 323-24, 729 P.2d 1151 (1986); Ranney v. Ranney, 219 Kan. 428, 431-32, 548 P.2d 734 (1976). This suggests die statutory term “separation agreement” was not considered applicable to prenuptial agreements providing for asset division if die parties later divorced, and, therefore, the statute did not completely replace the common law.
In 1988, the legislature addressed prenuptial agreements by enacting K.S.A. 23-801 et seq., which is commonly referred to as the Kansas Uniform Premarital Agreement Act (KUPAA). L. 1988, ch. 204, sec. 1. It expressly defined premarital agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” K.S.A. 23-802. The KU-PAA gave premarital agreements more favorable statutory treatment tiian separation agreements by making premarital agreements enforceable so long as they were voluntarily executed and not unconscionable. Compare K.S.A. 23-807 with K.S.A. 60-1610(b)(3). The result was that prenuptial agreement enforceability was no longer based on the common law’s concern for “just and equitable” terms.
The statutory provisions concerning divorce proceedings have not changed in any material way since their enactment. K.S.A. 60-1610(b)(1), which is now K.S.A. 2013 Supp. 23-2802, governs property division when the parties do not have an agreement. That statute includes a list of factors the district court should review and further allows consideration of “such other factors as the court considers necessary to make a just and reasonable division of property.” (Emphasis added.) This is the provision the district court invoked after it invalidated the Trasters’ agreement. On the other hand, K.S.A. 60-1610(b)(3), which is now K.S.A. 2013 Supp. 23-2712, directs district courts to incorporate the parties’ “separation agreement” into the divorce decree if the district court finds the parties’ agreement to be “valid, just and equitable.” We examine next whether this statute controls the Trasters’ agreed-upon property division.
Standard of Review
Whether K.S.A. 60-1610(b)(3) governs marital agreements entered after marriage when the parties intend to stay married is an issue of first impression for this court. Resolving it requires interpretation of K.S.A. 60-1610(b)(3), which is a question of law subject to unlimited review. And the most fundamental rule of statutory interpretation is that the legislature’s intent governs if that intent can be ascertained. In that quest, an appellate court’s first task is to read the statute’s plain language, giving ordinary words their ordinary meanings. Eastman v. Coffeyville Resources Refining & Marketing, 295 Kan. 470, 473, 284 P.3d 1049 (2012). But if the statute’s language is subject to multiple interpretations
“ ‘a reviewing court “may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” [Citation omitted.] Generally, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.] We ascertain the legislature’s intent behind a particular statutory provision “from a general consideration of the entire act. Effect must be given, if possible, to the entire act and eveiy part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]” [Citations omitted.] Thus, in cases that require 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.” [Citation omitted.]’ ” Milano’s, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707 (2013).
Analysis
The statute governing separation agreements does not expressly define its scope. It states in relevant part:
“(3) Separation agreement. If the parties have entered into a separation agreement which the court finds to he valid, just and equitable, the agreement shall be incorporated in the decree. A separation agreement may include provisions relating to a parenting plan. The provisions of the agreement on all matters settled by it shall be confirmed in the decree except that any provisions relating to the legal custody, residency, visitation parenting time, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article.” (Emphasis added.) K.S.A. 60-1610(b)(3).
A plain language argument can be made based on a dictionary definition of “separation agreement.” One describes the term as “[a]n agreement between spouses in the process of a divorce or legal separation concerning alimony, maintenance, property division, child custody and support, and the like.” (Emphasis added.) Black's Law Dictionary 1572 (10th ed. 2014). In contrast, a “post-nuptial agreement” is:
“An agreement entered into during marriage to define each spouse’s property rights in the event of death or divorce. The term commonly refers to an agreement between spouses during the marriage at a time when separation or divorce is not imminent. When dissolution is intended as the result, it is more properly called a property settlement or marital agreement.” (Emphasis added.) Black’s Law Dictionary 1356 (10th ed. 2014).
But a fair criticism of this approach must acknowledge that it depends on a modern edition of Black’s. Notably, the earlier fourth edition of that resource, which was in effect when the legislature enacted K.S.A. 60-1610 (Corrick 1964), did not define “separation agreement.” See Black’s Law Dictionary (4th ed. 1951). So to the extent this court wants to put itself in the 1963 legislature’s shoes to divine its legislative intent, Black’s is not helpful.
Similarly, K.S.A. 60-1610’s legislative history is unavailable because its initial enactment predates regular maintenance of committee reports. Accordingly, the historical background providing the circumstances attending the statute’s original passage and its legislatively stated purposes are unknown.
There is also no clear definition of “separation agreement” in this court’s caselaw, although the term has appeared in Kansas since at least 1900. A review of that caselaw shows the term was never clearly defined. See, e.g., King v. Mollohan, 61 Kan. 683, 60 P. 731, aff'd on reh. 61 P. 685 (1900). At best, it can be seen from the caselaw that there are instances preceding K.S.A. 60-1610(b)’s enactment that seem to apply the term “separation agreement” to marital agreements governing property settlements entered temporally around or during divorce proceedings. See Likes v. Likes, 191 Kan. 630, 631, 383 P.2d 983 (1963) (“separation agreement” entered on November 23, I960; divorce granted December 13, 1960); Hoch v. Hoch, 187 Kan. 730, 731-32, 359 P.2d 839 (1961) (summarizing that property agreement was reduced to writing and signed by both parties and defendant “[subsequently . . . signed his entry of appearance in the divorce action”); Feldmann v. Feldmann, 166 Kan. 699, 701-02, 204 P.2d 742 (1949) (divorce filed within a few weeks after the “separation agreement” was executed); Shaffer v. Shaffer, 135 Kan. 35, 36, 10 P.2d 17 (1932) (divorce filed in July 1930; “separation agreement” reduced to writing in November 1930). But see Leverenz v. Leverenz, 183 Kan. 79, 80, 325 P.2d 354 (1958) (stating “in 1947, the parties signed a separation agreement, but apparently did not separate”).
But this more anecdotal approach to defining the term is subject to criticism as well because it would necessarily derive its conclusion from the particular case facts presented on appeal, even though those facts were never explicitly stated as being important to the holdings. In other words, just reviewing the caselaw still leaves open whether the term’s interpretation might have been changed if different facts were presented.
Expanding to other authority is also not particularly helpful. David cites In re Marriage of Wood, Case No. 97,123, 2007 WL 3146693 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1178 (2008), and Short, Settlement Agreements, Practitioner’s Guide to Kansas Family Law § 8.1 (Mann, 2d ed. 2010). But neither is entirely persuasive, although some language in each supports David’s position.
In In re Marriage of Wood, married spouses executed a limited contract—not in contemplation of divorce—that gave the husband sole ownership of property the couple had purchased with the husband’s premarital funds in the event of divorce. The.couple’s remaining assets were not governed by any contract. The wife filed for divorce several years later seeking an equal property division, including the land subject to the postmarital agreement. The trial court awarded the husband title to the land and the purchase price based on the agreement, but it held the agreement did not address how to allocate that property’s appreciated value. And since the couple’s remaining assets were not governed by any agreement, the court entered what it considered to be a just and reasonable property division under K.S.A. 60-1610(b)(l) by granting the wife an interest in the subject property’s appreciated value. The husband appealed, arguing the trial court misconstrued the agreement and erred by including the appreciated value when making a just and reasonable property division under K.S.A. 60-1610(b)(l). The husband lost both claims on appeal. In re Marriage of Wood, 2007 WL 3146693, at *7 (“[T]he trial court correctly interpreted the postnuptial agreement of the parties and divided their property in a just and reasonable manner.”).
The issue in In re Marriage of Wood was whether the property awarded under the postnuptial agreement should be considered when dividing the couple’s remaining assets under K.S.A. 60-1610(b)(1). But the panel’s standard of review focused oddly on K.S.A. 60-1610(b)(3), stating:
“The standards of review in this case are those involving the interpretation of the provisions of a postnuptial agreement as well as a judgment adjusting tire property rights of parties involved in a divorce action.
“We must view the postnuptial agreement as we are taught by Short, Settlement Agreements, Practitioner’s Guide to Kansas Family Law § 8.1 (Kan. Bar Ass’n [1997 edition]) that
“ ‘any postnuptial agreement . . . which is presented for judicial approval in a divorce or separate maintenance action will be treated as a separation agreement and tested for “valid, just and equitable” characteristics, even though the agreement was entered into many years earlier and long before any actual separation.’ ” In re Marriage of Wood, 2007 WL 3146693, at “4.
And while this language certainly supports David’s argument, it is not at all clear why the panel mentioned it because the parties were not disputing the agreement’s validity. So at best, the K.S.A. 60-1610(b)(3) discussion is dicta. At worst, the panel’s analysis is fundamentally flawed by confusing K.S.A. 60-1610(b)(3)’s separation agreement requirements with review of a district court’s property division authority under K.S.A. 60-1610(b)(l) in the absence of an agreement. In addition, reliance on the Practioner’s Guide to Kansas Family Law § 8.1 is also subject to criticism because in its introductoiy section on settlement agreements, it states:
“Some marital settlement agreements are executed after tire parties have married but before any divorce action has been filed, in the hope that the parties will never divorce.
“Thus, a postnuptial agreement (indeed, any agreement between spouses) presented for judicial approval in a divorce action will be treated as a separation agreement and tested for Valid, just and equitable’ characteristics, even though the agreement was entered into many years earlier and long before any actual separation.” Short, Practioner’s Guide to Kansas Family Law § 8.1.1.
These statements are made without citation to any authority and are not revisited in the chapter’s substantive portions on settlement agreements. So while this comment provides David with some secondary authority, it too is easily criticized as offering no analysis to support its conclusion and again leaves us with little to work from.
Turning then to tire panel’s rationale, it based its conclusion on the perceived need to subject postmarital agreements entered when the parties intend to remain married to a higher scrutiny than agreements entered when the parties intend to divorce. Marriage of Traster, 48 Kan. App. 2d at 365-66. But the panel did not conduct a statutory interpretation analysis to determine what the legislature intended the undefined term “separation agreement” to mean. Instead, it simply decided that a postnuptial agreement entered under such circumstances would not qualify as a separation agreement under K.S.A. 60-1610(b)(3) “because the statute governing separation agreements is part of the Kansas statutory scheme controlling dissolution of marriage.” 48 Kan. App. 2d at 366. It then relied on a secondary source, citing 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 93 (1999) (A separation agreement is “ ‘a contract entered into by a married couple in contemplation of annulment, separate maintenance or divorce.’ ” [Emphasis added.]) 48 Kan. App. 2d at 366-67.
But this secondary source is not as persuasive as the panel lets on. For example, it states: “What distinguishes a separation agreement from a postnuptial contract’ is that a separation agreement contemplates an end of the marriage while a postnuptial contract is merely any contract entered into after marriage.” 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.1, p. 94 (citing Relihan v. Relihan, 157 Kan. 249, 139 P.2d 385 [1943]). Relihan, however, was distinguishing prenuptial agreements from postnuptial agreements and did not address whether diere was more than one category of postnuptial agreement. In addition, it predates K.S.A. 60-1610’s enactment, so the Relihan court was simply reviewing a postnuptial agreement under the common-law rule. 157 Kan. at 250-51. We fail to discern how Relihan supports the cited proposition.
Accordingly, we face a difficult issue of statutory interpretation with no particularly persuasive guidance regarding intent—a circumstance suggesting this matter is ripe for legislative clarification. But in that absence, we hold the better statutory interpretation is to include all agreements entered during marriage that provide for a spouse’s property rights in the event of divorce or separation within the meaning of “separation agreement” as that term is used in K.S.A. 60-1610(b)(3), regardless of whether the parties’ intend to remain married at the time of execution. The proximity between when the agreement is executed and the divorce does not control. As compared to the panel’s interpretation, ours is more consistent with the common law, which subjected all postnuptial agreements to the same scrutiny, straightforward, and easier to apply. For these reasons, we affirm the district court’s ruling that the Trasters’ 2004 agreement was a separation agreement under K.S.A. 60-1610(b)(3).
With this much decided, we must determine next whether the district court erred when it did not divide the Trasters’ property according to their agreement. We hold that the district court erred when it invalidated the 2004 agreement as violative of public policy and remand for reconsideration of whether the agreement is just and equitable under K.S.A. 60-1610(b)(3).
Does ti-ie agreement satisfy statutory requirements?
K.S.A. 60-1610(b)(3) provides that a separation agreement be “valid, just and equitable” before a district court incorporates its terms into a divorce decree. This necessitates the district court making two independent determinations. First, the agreement must be a valid contract. This encompasses traditional contract requirements, such as a lack of fraud and public policy considerations. Second, the agreement must be just and equitable. This encompasses whether the terms provide an acceptable or fair property division under the particular circumstances.
The district court invalidated the Trasters’ agreement on both grounds. It held the agreement invalid or void as against public policy, relying on caselaw involving a prenuptial agreement that was not subject to review under K.S.A. 60-1610(b)(3). The district court determined the agreement provided David with a substantial financial incentive to divorce as early as possible due to the disproportionate asset division. And based on those same considerations, it also held the contract was unreasonable and inequitable. We examine both holdings.
The Trasters’ agreement is not void as against public policy.
Standard of Review
This court recently recited the standard of review for evaluating whether a contract is unenforceable because it violates public policy in Frazier v. Goudschaal, 296 Kan. 730, 748, 295 P.3d 542 (2013). We stated:
“ < “[■j’jjjg interpretation and legal effect of written instruments are matters of law, [citation omitted], and our standard of review is unlimited on a question of law. [Citation omitted.]” [Citation omitted.] “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.].’ [Citation omitted.]” 296 Kan. at 748.
“ ‘Public policy forbids enforcement of an illegal or immoral contract, but it equally insists that those contracts which are lawful and which contravene none of its rules shall be enforced, and that they shall not be set aside or held to be invalid on a suspicion of illegality. A contract is not void as against public policy unless injurious to the interests of the public or contravenes some established interest of society [citation omitted]. Illegality from the standpoint of public policy depends upon the facts and circumstances of a particular case [citation omitted], and it is the duty of courts to sustain the legality of contracts where possible [citation omitted]. There is no presumption that a contract is illegal, and the burden of showing the wrong is upon him who seeks to deny his obligation thereunder. The presumption is in favor of innocence and the taint of wrong is a matter of defense [citations omitted].’ ” Frazier, 296 Kan. at 749 (quoting In re Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 [1960]).
Analysis
Separation agreements are subject to the same rules of law applicable to other contracts. Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972). It has long been held that contracts, including those governing property settlement rights in a divorce, are to be liberally interpreted to cany out the intention of the persons making them. Ranney, 219 Kan. at 431; Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P.2d 9 (1938).
There are a number of requirements for a valid contract, but the rule relevant to this appeal is that “[cjontracts in contravention of public policy are void and unenforceable.” Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167 (2001). An agreement violates public policy if it is “ Injurious to the interests of the public, contravenes some established interest of society, violates some public statute, or tends to interfere with the public welfare or safely/ ” Brenner v. Oppenheimer & Co., 273 Kan. 525, 548, 44 P.3d 364 (2002) (quoting Hunter v. American Rentals, 189 Kan. 615, 618, 371 P.2d 131 [1962]). As to marital agreements, this court has recited a more tailored policy statement:
“1. The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understanding^ made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties.
“2. Public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage tire parties to live together and to prevent separation.” (Emphasis added.) Ranney, 219 Kan. 428, Syl. ¶¶ 1, 2.
Both the district court and the panel recited this public policy statement but disagreed whether the Traster s’ agreement promoted or encouraged divorce. And in doing so, each lower court applied different common-law rules emerging from the same public policy statement to reach opposing outcomes.
The panel relied on caselaw that has held the parties’ agreement cannot contain a provision in which they agree to file for divorce or agree not to contest a divorce. See In re Estate of Cooper, 195 Kan. 174, 180, 403 P.2d 984 (1965) (postnuptial properly settlement agreement void as against public policy because husband was required to file for divorce as soon as the agreement was signed and the contract prohibited wife from contesting the divorce). The district court, on the other hand, relied on Kansas cases that voided contracts on public policy grounds because the properly division was deemed to have created a financial incentive to file for divorce. See Ranney, 219 Kan. at 432 (prenuptial agreement invalid because property division so favored husband that he “tended to gain by bringing about a separation” because he would retain all property acquired during the marriage and the wife could not malee any claim against him for support); see also Fincham v. Fincham, 160 Kan. 683, 687-88, 165 P.2d 209 (1946) (settlement provision invited and encouraged separation as a source of pecuniary profit for husband).
The contrast in tírese approaches presents an obvious question about what die common law has required. We focus on the common-law rule applied in Ranney because that is the rule the district court applied to void the Trasters’ agreement. In Ranney, the wife sought to invalidate a prenuptial agreement in a later divorce proceeding because the property division greatly favored the husband. Framing the inquiry as whether the contract was void because it tended to invite or encourage divorce, a majority of the court held the wife was not encouraged to seek divorce because she would lose all right to support and maintenance. But die husband “tended to gain by bringing about a separation” because he would lose nothing except his right in the marital home, furnishings, and car. The husband would retain all property acquired during the marriage, and the wife could not make any claim against him for support. 219 Kan. at 432. So based on the limited assets allocated to the wife, the court concluded the agreement was “unfair, inequitable, contrary to public policy and unenforceable.” 219 Kan. at 433.
The inequitable property division in Ranney is similar to the Trasters’ agreement, but there are important differences. As the panel correctly pointed out, the Trasters’ 2004 agreement essentially reiterated a similar one made in the 1980’s. And since David did not file for divorce until decades after first agreeing to the distinctly disproportionate property division, the panel reasoned the agreement could not have created too great of an incentive for divorce. 48 Kan. App. 2d at 362-63. In addition, the panel focused on die express statements that the parties intended to stay married and recited specific justifications for the unequal distribution by acknowledging Debra’s parents provided “ ‘nearly all’ ” the couple’s existing assets with the intent that Debra continue to benefit from them. 48 Kan. App. 2d at 363. And to these observations we would add that the agreement more clearly provides David with a financial incentive to remain married because he would continue to enjoy use of those assets.
Standing alone, these distinctions are probably sufficient to merit a different outcome than the one the district court found, but we are faced with an even more fundamental distinction. The agreement in Ranney was a prenuptial agreement, not a separation agreement subject to review under K.S.A. 60-1610(b)(3). So the public policy inquiry the district court engaged in, which focused on the nature of the agreement’s property division, duplicated the analysis undertaken when reviewing whether a separation agreement is “just and equitable” under the statute’s second prong. Since the common law exists only when there is no statutory law, it is problematic to continue undertaking—-as the district court did—this specific public policy analysis when reviewing separation agreements under K.S.A. 60-1610(b)(3). Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 663, 876 P.2d 1362 (1994) (“[T]he com mon law exists only where there is no statutory law. It is the law of necessity.”)- Once the legislature has spoken, the legislative statement supersedes the common law. See K.S.A. 77-109; U.S.D. No. 501 v. Baker, 269 Kan. 239, 243, 6 P.3d 848 (2000).
We hold that the public policy inquiry into whether the property division in a separation agreement tends to “invite and encourage” divorce was abrogated when the legislature enacted K.S.A. 60-1610(b)(3) and specified such agreements must be “just and equitable.” District courts tasked with reviewing separation agreements should examine property distribution under the legislature’s chosen “just and equitable” standard, rather than trying to figure out whether that distribution is a springboard to divorce or separation. The public policy analysis undertaken in Ranney examining whether the property division was so favorable to one party that it “encouraged” separation or divorce is disavowed in the context of separation agreements governed by K.S.A. 60-1610(b)(3)’s second prong.
We hold that the district court erred as a matter of law when it determined the Trasters’ agreement was void as against public policy under the rationale that it gave David a substantial financial incentive to file for divorce.
IS REMAND NECESSARY FOR THE “JUST AND EQUITARLE” ANALYSIS?
The district court also held the Trasters’ agreement did not satisfy K.S.A. 60-1610(b)(3)’s “just and equitable” requirement because “virtually everything acquired during tire marriage through gift, inheritance and the joint effort of the parties would go to Debra.” The panel did not address this analysis because it concluded the agreement was not subject to K.S.A. 60-1610(b)(3)’s standards. Since we have determined the panel erred in that regard, we consider next this aspect of the district court’s ruling.
Standard of Review
This court has not established a standard for reviewing whether a separation agreement is “just and equitable.” The Court of Appeals has applied the following standard:
“When a separation agreement is submitted for court approval, the trial judge is given broad discretion to determine its fairness. [Citation omitted.] Thus, we review tire fairness decision for abuse of discretion.” In re Marriage of Takusagawa, 38 Kan. App. 2d 401, 406, 166 P.3d 440, rev. denied 285 Kan. 1174 (2007).
We agree this is the appropriate standard of review. 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, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Bowen, 299 Kan. 339, 348-49, 323 P.3d 853 (2014). We have also indicated an adequate record must exist for an appellate court to determine whether a district court abused its discretion. Without such a record, the appellate court may remand for additional findings. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013).
Analysis
The district court did little, if anything, to analyze the Trasters’ agreement in this regard other than to simply focus on its public policy conclusion, which we have held to be in error. The court first recited the fact that the property division meant that “David would receive 1.13% and Debra would receive 98.87% of the marital estate.” It then stated, without any additional analysis, that “[i]n light of the additional evidence submitted at trial the court finds that this postnuptial is unreasonable and inequitable.” This statement was footnoted that even assuming a lesser disparity, the agreement was still unreasonable and inequitable.
We hold this determination was guided by several errors of law and suffers from an insufficient factual analysis to permit adequate appellate review. A district court must consider more than the resulting property division at the time of divorce when analyzing whether a separation agreement is just and equitable under K.S.A. 60-1610(b)(3).
The district court focused only on the present day property division and gave no stated consideration to the Trasters’ explicit reasons for that division, i.e., Debra’s parents being the source of the assets, Debra’s medical circumstances, and the financial impact on Debra if she and David divorced. One important consideration would have been whether the reasons David and Debra gave for the one-sided property division were factually based at the time they were recited in the separation agreement; and, if so, what would be wrong with honoring those stated justifications. Similarly, the district court gave no apparent thought to the fact that these terms were voluntarily entered into or to the Trasters’ express agreement that this asset division was “fair, just and reasonable” and comported “with all legal requirements so as to be fully enforceable under tire laws of the State of Kansas.” These considerations are important in light of our state’s general rule that marital agreements are to be upheld and liberally interpreted to cany out the makers’ intentions when there is a lack of fraud, no overreaching, and no other public policy impediment. Ranney v. Ranney, 219 Kan. 428, 431, 548 P.2d 734 (1976).
Under K.S.A. 60-1610(b)(3), the district court’s task may be a complicated one to be sure. But it cannot accomplish that task without noting the circumstances important to its analysis and clearly explaining what factors may override the general rule and stating why. In this case, the district court made only general observations relating to the statute’s just and equitable prong. It then jumped straight to a conclusion that the Trasters’ agreement violated public policy because its terms somehow encouraged David to divorce despite being in place for more than 2 decades without having that effect. Put simply, more is required from the district court if it is to conclude under these particular circumstances that the Trasters’ agreement cannot be enforced in light of the parties’ freedom of contract and the general rule that such agreements should be honored.
In Davis v. Miller, 269 Kan. 732, 738, 7 P.3d 1223 (2000), this court considered a postnuptial agreement that the parties entered in conjunction with their reconciliation after the husband had filed for an earlier divorce. The issue was whether the parties could include a choice-of-law provision selecting the unconscionability standard applicable to prenuptial agreements to determine the legality of their postmarital agreement. We upheld the parties’ right to bind themselves to an otherwise inapplicable statutory standard. 269 Kan. at 739. And we held the choice-of-law provision did not violate public policy.
In a similar vein, tire district court needed to explain why David and Debra could not agree to the property division at issue for the reasons they explicitly embraced. As this court has previously stated, a property division need not be equal to be just and reasonable. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975) (“Nowhere in any of our decisions is it suggested that a division of all the property of the parties must be an equal division in order to be just and reasonable . . . .”).
That said, these concerns are not meant to convey that the agreement is just and equitable simply because it claims to be. See In re Marriage of Kirk, 24 Kan. App. 2d 31, 36, 941 P.2d 385, rev. denied 262 Kan. 961 (1997) (statute requires a district court to scrutinize a separation agreement before approving it); Cook v. Cook, 7 Kan. App. 2d 179, 184, 638 P.2d 980, revd on other grounds 231 Kan. 391, 646 P.2d 464 (1982) (“[M]ere agreement by the parties does not vitiate the court’s duty to scrutinize the settlement agreement, and if the agreement is not valid, just and equitable, the court should reject or alter it.”). What is required is a careful and full recitation of the facts and particular circumstances that justify the district court’s conclusions that the parties’ intentions cannot be honored. This will in turn make those conclusions amenable to appellate review.
Having determined that the Trasters’ 2004 agreement is not void as against public policy, we further conclude that the district court must do a more thorough analysis that explicitly weighs all of these considerations before it may determine that agreement is not just and equitable under K.S.A. 60-1610(b)(3). We remand the case for that purpose and whatever additional determinations that must be made once that task is completed.
Attorney Fees
Our disposition moots the panel’s decision that Debra was entitled to attorney fees. In re Marriage of Traster, 48 Kan. App. 356, 381, 291 P.3d 494 (2012). But it also reverses the district court’s ruling that the Trasters’ agreement—including the attorney fee provision—was void on public policy grounds.
If the district court determines on remand that the Trasters’ agreement is to be incorporated into the divorce decree under K.S.A. 60-1610(b)(3), the indemnity provision will require the assessment of attorney fees. We further note there may be additional arguments under the separation agreement’s severability clause that the indemnity provisions survive even if the agreement is determined not to be just and equitable. We express no opinion on this, other than to note tire possibility that this may be an issue on remand.
The Court of Appeals decision is affirmed in part and reversed in part. The district court’s judgment is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings consistent with this opinion.
Beier, J., not participating.
David R. Platt, District Judge, assigned.
Michael J. Malone, Senior Judge, assigned. | [
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Hill, J.:
Dajuan McGill appeals the revocation of his felony probation. He contends the district judge could only impose an intermediate sanction in his case because the judge failed to first find that the safety of the public or McGill’s own welfare would be jeopardized if he was not sent to prison, that he had committed a new felony or misdemeanor, or that he had absconded from supervision. McGill argues K.S.A. 2013 Supp. 22-3716 controls the issue. Because the statutory amendments mentioned by McGill apply only to violations occurring on and after July 1,2013, we hold the amendments to that law are inapplicable here since McGill’s probation violation occurred before that date.
This was not the first revocation hearing in this case.
In April 2009, McGill pleaded guilty to one count of aggravated burglary and one count of theft and received a suspended 34-month prison sentence. The court then ordered McGill to serve 36 months’ probation with 24 months’ postrelease supervision. Me- Gill’s probation has been revoked on five occasions prior to this current revocation. On one occasion, McGill had entered a no contest plea to one count of aggravated battery, resulting in a suspended 26-month prison sentence. The court, in response, revoked his probation but then reinstated him on a new term of probation. The warrant regarding McGill’s current probation violation hearing was filed on May 14, 2013. McGill’s probation revocation hearing was held on July 24, 2013. This time, the district court revoked McGill’s probation and sent him to prison to serve his 60-month sentence.
False paijcheclcs became an issue in this case.
McGill was to gain and maintain employment as a condition of probation. He was required to provide proof of employment to Intensive Supervision Officer Luis Navarro. McGill informed Navarro he was employed through Quality Lawncare and Remodeling. McGill said the address of the business was 1406 North Pennsylvania, in Wichita, Kansas. However, the owner of the business located at that address, Warren Pyles, testified to the contrary. Pyles testified he owned an excavating and contracting shop located at 1406 North Pennsylvania, which was not Quality Lawncare and Remodeling. He also testified no business similar to Quality Lawn-care and Remodeling had ever operated out of the Pennsylvania address.
As proof of employment, McGill had given Officer Navarro two paychecks. When Navarro questioned McGill’s employment, he went to the bank to verify the legitimacy of the second check. The checks were issued in the name of Quality Lawncare and Remodeling. The account was opened by Jason Engleman. Engleman lived with McGill at the residential center. The checks were signed by someone other than Engleman, who was the sole proprietor of the account. The service manager informed Navarro the check was not a negotiable instrument. No checks had ever cleared the account from which McGill’s paychecks were written.
Navarro filed a warrant on May 14, 2013, alleging McGill violated the terms of probation by failing to provide proof of employment, by providing false paychecks to Navarro on two occasions, and McGill was “out-of-place of assignment.” Ultimately, the court found that McGill had committed a new crime by giving the false paychecks to his probation supervisor and revoked McGill’s probation.
To us, McGill makes three arguments. First, the court failed to make particularized findings as required by K.S.A. 2013 Supp. 22-3716, and it should have only imposed an intermediate sanction of brief periods of incarceration in the county jail, instead of sending him to prison. Next, McGill argues the court misinterpreted the statute when it found he had committed a new crime. Finally, in McGill’s view, his due process rights were violated when he was never given any notice that he had committed a new crime. We will address those issues in that order.
We review the statute in question.
After its amendment, K.S.A. 2013 Supp. 22-3716 offers the district court a variety of intermediate sanctions that it could impose upon defendants on probation that have violated the terms or conditions of their probation. Basically, the court can now send defendants to jail for brief periods instead of sending them to prison to serve their sentences. See K.S.A. 2013 Supp. 22-3716(c)(l)(A)-(D).
But a court can pass over these intermediate sanctions and impose the original sentence upon those who violate their probation if the court finds that “the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by such [an intermediate sanction].” K.S.A. 2013 Supp. 22-3716(c)(4). Further, if the inmate has committed “a new felony or misdemeanor or abscond[ed] from supervision,” the court need not impose an intermediate sanction. K.S.A. 2013 Supp. 22-3716(c)(8).
Thus, McGill’s argument becomes clear on this point. He believes that because the court did not make any findings, other than finding that he committed a new crime by giving false paychecks to his probation supervisor as proof of employment, the court could legally impose only an intermediate sanction for his probation violation. McGill is not helped by that law.
Our legislature recently amended K.S.A. 2013 Supp. 22-3716(c). It made manifest its intent regarding this statute’s application. The legislature plainly added an application date to K.S.A. 2013 Supp. 22-3716(c):
“(12) The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced.” (Emphasis added.) L. 2014, ch. 102, sec. 8.
In his reply brief, McGill addressed the amendments in the 2014 legislative session laws. It appears that rather than concede that the legislature has since amended the statute, McGill manipulates the language in order to support his view. McGill blatantly ignores the first part of the amendment which states: “The violation sanctions provided in this subsection shall apply to any violation of conditions of release or assignment or a nonprison sanction occurring on and after July 1, 2013,” (emphasis added) and instead chooses only to include the following: “ ‘regardless of when the offender was sentenced for the original crime or committed the original crime for which sentenced,’ ” as support for his argument. McGill is unable to provide any true support for his argument that K.S.A. 2013 Supp. 22-3716(c) should apply retroactively.
Our legislature has now made its intent clear—the date of the defendant’s probation violation controls whether the intermediate sanction provisions of K.S.A. 2013 Supp. 22-3716(c) apply. Mc-Gill’s probation violations occurred before July 1, 2013. Accordingly, the district court was not required to impose intermediate sanctions. We turn now to the remaining issues.
For the first time on appeal, McGill argues the language in K.S.A. 2013 Supp. 22-3716(c)(8) is vague. Specifically, he contends the phrase “ ‘commits a new felony’ ” is ambiguous and claims the rule of lenity applies in his case, and this court must interpret the statute in his favor.
The language McGill quotes is not in K.S.A. 2012 Supp. 22-3716, tire applicable statute in McGill’s case. We need not consider Mc-Gill’s “vagueness” argument, nor address McGill’s rule of lenity argument simply because it is not applicable.
Finally, McGill argues the district court violated his due process rights under K.S.A. 2013 Supp. 22-3716 and under the Fourteenth Amendment to the United States Constitution. Specifically, McGill contends that he was denied his fundamental right to notice because the warrant did not allege he had committed a new crime. McGill concedes he did not raise this issue below, but because he was denied due process, the district court lacked subject matter jurisdiction to revoke his probation.
Fundamentally, issues relating to the court’s subject matter jurisdiction may be raised at any time. Board of Miami County Comm'rs v. Fianza Rail-Trails Conservancy, Inc., 292 Kan. 285, 319, 255 P.3d 1186 (2011). In State v. Hall, 287 Kan. 139, 144, 195 P.3d 220 (2008), our Supreme Court held: “Nevertheless, even if tire State had complied with K.S.A. 22-3716; a district court may be deprived of jurisdiction if an alleged probation violator is denied due process.” However, the due process rights discussed in Hall required the State to “act without unreasonable delay in the issuance and execution of an arrest warrant.” 287 Kan. at 144.
Here, the district court had subject matter jurisdiction and Mc-Gill’s due process rights were not violated.
The Supreme Court of the United States has held that in a probation revocation hearing, the defendant is not due the full panoply of rights due in a criminal case. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). The minimum due process rights afforded to a defendant in a probation revocation hearing are governed by the applicable version of K.S.A. 22-3716. See State v. Billings, 30 Kan. App. 2d 236, 237-38, 39 P.3d 682 (2002).
“Minimum due process includes written notice of the.claimed violations of probation, disclosure to the probationer of the evidence against him or her, the opportunity to be heard in person and to present evidence and witnesses, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. The probationer also has a right to the assistance of counsel.” 30 Kan. App. 2d at 238.
In the warrant provided to McGill, Navarro listed the alleged probation violations:
“1. The defendant failed to provide proof of employment.
“2. On 4/25/13 and 5/6/13, the defendant provided false paychecks to his ISO.
“3. The defendant was out-of-place of assignment.”
Clearly, McGill’s due process rights were not violated, and the district court had subject matter jurisdiction to revoke his probation. He received proper notice of the probation violations prior to his hearing, he was represented by counsel, and he was able to cross-examine witnesses and provide evidence. McGill received the minimum due process rights as required under K.S.A. 2012 Supp. 22-3716.
Looking more deeply into what the district court did in this case, we are satisfied that none of McGill’s rights have been abridged. When making its findings, the district court relied on the files in both McGill’s aggravated burglary and aggravated battery cases. The district court also considered transcripts and testimony from McGill’s previous probation revocation hearings. The district court noted McGill committed a violent felony while on probation, he continued to use alcohol and/or substances, there was a pattern of his failure to comply with probation conditions, and his “conscious disregard of the law in his driving on suspended license.” The district court found McGill was not amenable to probation, he had exhausted all programs available, and he perpetrated a fraud. The district court also made a finding that McGill committed a new criminal offense—making a false information. The district court held, “So by all appearances the Court makes a finding [McGill] also committed a new crime so I am bypassing the requirements of [K.S.A. 2013 Supp. 22-3716] based on the public safety would be jeopardized [sic].”
After tire district court decided there was evidence McGill violated his probation, it had the discretion to revoke his probation. Once there is evidence that probation was violated, the decision to revoke probation rests within the sound discretion of the district court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). We see no abuse of discretion here.
We affirm the district court’s revocation of McGill’s probation. | [
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Standridge, J.:
Robert Alfred Gauger, III, appeals his conviction for theft by deception. First, he argues that the district court erred by admitting three exhibits into evidence because they violated the best evidence rule. Second, he argues the district court denied him his constitutional right to a fair trial by instructing the jury that a mistrial would be an expense and inconvenience to the parties, the court, and the taxpayers. For the reasons stated below, we affirm Gaugers conviction.
Facts
Gauger began working for Linaweaver Construction in August 2012. His employment, however, ended on November 5, 2012. At some point after November 5, 2012, Gauger called Mark Lin-aweaver, the owner of Linaweaver Construction, and asked him for permission to purchase some car batteries on Linaweaver Construction’s account at O’Reilly Auto Parts (O’Reilly). Mark denied this request.
In December 2012, Karen Moon, who was an administrative assistant for Linaweaver Construction at that time, was reviewing a monthly invoice from O’Reilly. Employees would sometimes purchase items at O’Reilly and charge the items to the company’s account. Part of Moons job was to match the receipts submitted by employees to the charges listed on the invoice. If there was a missing receipt, she would print an electronic copy of the receipt from O’Reillys website. While reviewing the O’Reilly invoice, she noticed that there were missing receipts for the purchase of some batteries and a quart of oil. The charges had been signed for by a person named “Robert.” Moon knew, however, that no one named Robert worked at Linaweaver Construction at the time the charges were made.
Moon took the invoice and printed receipts to Mark. He told her he believed Gauger was the person who had made the charges and that Gauger did not have authorization to do so. Moon then called the O’Reilly store where the purchases had been made, and the store credited the charges back to Linaweaver Construction.
In May 2013, the State filed a complaint against Gauger charging him with one count of theft by deception. A jury trial was held on September 15, 2014. Sean Blanlce, an employee at the Leavenworth O’Reilly store in November 2012, testified first at trial. He explained that he was familiar with Linaweaver Construction and stated that when the company ordered parts from O’Reilly an employee usually called for parts and had them delivered or would come in to the store and pick them up. Blanke knew that Gauger was an employee of Linaweaver Construction for a short time because Gauger would call and order parts for the company.
Blanke testified that sometime in November 2012 Gauger called and ordered a battery. Blanke asked if Gauger wanted it delivered, but Gauger said he would come in to pick it up. When Gauger came into tire store, the order was charged to Linaweaver Construction. Blanke did not have a discussion with Gauger about whether he was authorized to charge the purchase to that account. Blanke testified that he completed a carbon-copy receipt. The store kept a copy and the other copy was given to Gauger.
The State was permitted to introduce into evidence a printed copy of the receipt from this transaction over an objection lodged by fhe defense based on the best evidence rule. The printed copy of the receipt showed that the transaction took place on November 16, 2012, and that the total charge for the battery was $124.53. There is an illegible signature on the bottom of tire receipt, but right above the signature fine is a typed copy of the name of the customer signing the receipt. The customer was identified on the printed copy as “Bob.” Blanke recalled typing the name Bob because it is short for Robert.
After Moon had her discussion with Mark, she called Blanke and asked him to print off electronic copies of some specific receipts so that she could verify the purchases. Blanke printed electronic copies of the receipts requested by Moon and had the printed copies hand delivered to her. In addition to the receipt discussed above dated November 16, 2012, Blanke testified that he also was instructed to print electronic copies of two other receipts for Moon relating to transactions about which he had no personal knowledge. Electronic copies of the receipts from these other two transactions also were introduced into evidence at trial over Gauger’s objection based on the best evidence rule. One of the electronic receipts printed off by Blanke showed a charge to Linaweaver Construction of $119.12 for a batteiy purchased on November 13, 2012. The customer that signed the receipt was identified on the electronic copy of the receipt as “Robert.” The other electronic receipt showed a $123.44 charge to Linaweaver Construction for a battery and a quart of motor oil. The electronic receipt reflected that this transaction occurred on November 14,2012, and the customer again was identified as Robert.
During Moons testimony, the State sought to introduce into evidence a copy of the mondily invoice reviewed by Moon that reflected the charges made to Linaweaver Constructions account at O’Reilly in November 2012. The defense objected based on the best evidence rule. When questioned by the court, Moon explained that the original invoice was in her office and the exhibit offered at trial was a duplicate made from the original invoice. Moon explained that the only difference between the original and the copy was that tire missing receipts on the original copy were highlighted with a yellow highlighter. Moon offered to bring in the original to show the judge but noted that she would need it back as it was a business record. The district court overruled the objection and allowed the State to introduce the printed invoice—without the yellow highlighting—into evidence. The printed invoice showed, among other things, dates, transaction numbers, some names, and the amount of each charge. The charges shown on the electronic copies of the receipts that already had been introduced into evidence appeared on the monthly invoice.
Alan Arevalo, the manager of the Leavenworth O’Reilly store, also testified at trial. Gauger called Arevalo on two separate occasions to say that he would like to come into the store and “take care of’ the purchases he had charged to Linaweaver Construction. Defense counsel objected to this testimony on grounds that neither Gauger nor counsel had ever been told that there was contact between Gauger and Arevalo. Defense counsel also moved for a mistrial, arguing Gauger would be prejudiced if the objection was not sustained because the defense did not have time to adequately prepare for cross-examination in response to Arevalo’s testimony. The prosecutor responded to the objection and motion for mistrial by noting that, as alleged by defense counsel, the police reports in the case did not mention any contact between Arevalo and Gauger. The district court denied the motion for a mistrial and thereafter instructed the jury, without objection by the State, to disregard any statements regarding a conversation between Arevalo and Gauger.
Detective Tesh St. John with the Leavenworth Police Department testified he created a photo lineup that included pictures of Gauger and five other individuals with similar characteristics. He showed this lineup to Blanke. Before St. John could even start talking, Blanke identified Gauger as the person who had purchased a battery from him at O’Reilly.
After the State rested, the defense informed the district court that it was not going to present any evidence. During the jury instruction conference, the State requested that the jury be instructed to consider only the transaction that occurred on November 16, 2012, when determining Gauger’s guilt. There was no objection by the defense. The jury found Gauger guilty. The district court sentenced Gauger to a 12-month probation term with an underlying prison sentence of 10 months.
Analysis
1. The best evidence mle
Gauger argues that the district court committed reversible error by allowing the State to introduce several documents into evidence at trial over his objections based on the best evidence rule. We review best evidence challenges on appeal for an abuse of discretion. State v. Robinson, 303 Kan. 11, 221, 363 P.3d 875 (2015). 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 106, cert. denied 134 S. Ct. 162 (2013).
Relying on the best evidence rule, Gauger lodged objections at trial to the introduction of two exhibits containing copies of three O’Reilly receipts and an exhibit containing a copy of a monthly invoice from O’Reilly. The best evidence rule is codified at K.S.A. 60-467 and states in part:
“(a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2) (A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent, (B) the writing is outside the reach of the courts process and not procurable by the proponent, (C) the opponent, at a time when the writing was under the opponent’s control has been notified, expressly or by implication from the pleadings, that it would be needed at the hearing, and on request at the hearing has failed to produce it, (D) the writing is not closely related to the controlling issues and it would be inexpedient to require its production, (E) the writing is an official record, or is a writing affecting property authorized to be recorded and actually recorded in the public records as described in exception (s) of K.S .A. 60-460 and amendments thereto or (F) calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary.”
Based on his claim that the exhibits he challenged at trial were copies of original documents that did not fit into any of the exceptions listed in K.S.A. 60-467, Gauger argues the district court’s decision to permit the State to introduce those exhibits into evidence was an error of law and, thus, an abuse of discretion and reversible. Gauger also argues he was deprived of his constitutional right to a fair trial because his conviction rested largely on exhibits that were improperly introduced into evidence.
Relevant to application of the best evidence rule in the context of an electronically stored document is the recent opinion filed by our Supreme Court holding, as a matter of first impression, that any printed version of an e-mail communication may be admitted as the original, provided there is no genuine dispute regarding authenticity. Robinson, 303 Kan. at 221-23. The courts analysis of this issue is instructive:
“Robinson contends the trial court violated the best evidence rule by admitting numerous e-mails that were forwarded to police rather than printed from the victims’ or witnesses’ computers. Robinson also challenges exhibits containing e-mail strings rather than individual, segregated messages.
“The best evidence rule provides that ‘[a]s tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules.’ K.S.A. 60-467(a). A 'writing' is defined broadly to include every means of recording, upon any tangible tiring, any form of communication or representation. K.S.A. 60-401(m). Both parties presume the challenged e-mails constitute ‘writings’ and were offered to prove their content. We assume, without deciding, the same. Cf. State v. Schuette, 273 Kan. 593, 599, 44 P.3d 459 (2002) (caller ID displays not a writing because ‘[t]he results cannot be printed out or saved on an electronic medium’); State v. Wilson, No. 103, 749, 2012 WL 718916 (Kan. App. 2012) (unpublished opinion) (assuming ‘text messages may be writings subject to the best evidence rule’), rev. denied 296 Kan. 1136 (2013); see State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011) (best evidence rule applies only when evidence offered to prove content of a writing).
“Generally the best evidence rule requires the original writing be introduced when available. See State v. Goodwin, 223 Kan. 257, 258, 573 P.2d 999 (1977) (original required, but secondaiy evidence admissible where original unavailable). However, when a writing is stored electronically, what constitutes an original and the practicalities of any production are not automatically clear. After all, ‘[production of a true original of an email or social networking page is not necessarily possible because both are always electronic.’ Pannozzo, Uploading Guilt: Adding A Virtual Records Exception to the Federal Rules of Evidence, 44 Conn. L. Rev. 1695, 1708 (2012). K.S.A. 60-467(a) does not squarely address what constitutes an original for best evidence purposes when ‘the writing itself’ is stored electronically, and we have not had occasion to address the subject previously.
“In the absence of controlling authority, the parties turn to the federal equivalent of our best evidence rule. Like K.S.A. 60-467, the federal rule contemplates that ‘[a]n original writing ... is required in order to prove its content’ unless otherwise provided by rule or statute. Fed. R. Evid. 1002. More importantly, the federal rule specifically contemplates that ‘[f]or electronically stored information, “original” means any printout—or other output readable by sight—if it accurately reflects the information.’ Fed. R. Evid. 1001(d). This definition is consistent with Federal Rule of Evidence 1003, which provides that ‘[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about tire original’s authenticity or the circumstances make it unfair to admit the duplicate.’ A ‘duplicate’ is defined as ‘a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.’ Fed R. Evid. 1001(e).
“We regal'd the federal rule, along with similar state counterparts, as instructive, and we are persuaded by the authority interpreting these provisions. See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive where state and federal rules similar). The federal version of the rule is consistent with our prior holdings allowing the use of duplicates or secondaiy evidence, barring genuine disputes as to fraud or alteration. See, e.g., Goodwin, 223 Kan. at 258-59 (defendants best evidence challenge flawed where he never suggested contents of secondary evidence were less than the truth; absent proof of discrepancy, secondary evidence admissible). Likewise, by excluding printouts of electronically stored information or duplicates where the content is inaccurate, the federal rules further the underlying purpose of the best evidence rule—the prevention of fraud. See United States v. Yamin, 868 F.2d 130, 134 (5th Cir.1989) (purpose is to prevent fraud).
“Based on the federal definition of an ‘original’ and ‘duplicate’ writing, along with the underlying rule accepting both for best evidence purposes, any printed version of e-mail communications may be admitted as the original, provided there is no genuine dispute regarding authenticity. See New Image Painting, Inc. v. Home Depot U.S.A., Inc., No. SACV 09-1224 AG (RNBx), 2009 WL 4730891, at “2 (C.D. Cal. 2009) (unpublished opinion) (copies of e-mails constitute duplicate originals under Fed. R. Evid. 1003); Dirickson v. State, 104 Ark. App. 273, 277, 291 S.W.3d 198 (2009) (printouts of Internet conversations fall within definition of original); Commonwealth v. Amaral, 78 Mass. App. 671, 675-76, 941 N.E.2d 1143 (2011) (accepting printed e-mails as best evidence). Courts have found such printouts acceptable for best evidence purposes, even where the e-mails have been forwarded. Greco v. Velvet Cactus, LLC, Civ. No. 13-3514, 2014 WL 2943598, at °2-3 (E.D. La. 2014) (unpublished opinion) (text messages converted to e-mail format and forwarded to counsel for printing constituted ‘original’ for best evidence purposes).” 303 Kan. at 221-23.
Although the Robinson court analyzed the admissibility of electronically stored information under the best evidence rule in the context of an e-mail message, we believe the analysis in Robinson is equally applicable to the facts in the present case. Moon testified that she was able to print off any missing invoices from the O’Reilly website, evidence from which a reasonable inference can be made drat the receipts were electronically stored. That the invoices were electronically stored is also supported by the testimony of sales associate Blanke, who stated that he was required as part of the sales process to type into the computer the name of the individual purchasing the goods. And it is reasonable to conclude from a review of the copies of tire three O’Reilly receipts and the copy of the monthly invoice—which are included in the record on appeal—that all of tírese documents were printed copies of electronically stored documents. To that end, the invoice contained a note that said: “Need invoice copies? Go to www.oreillyauto.com/ myaccount.” Again, this strongly suggests tire invoice is electronically stored.
Based on the federal definition of an “original” and “duplicate” writing, along with the underlying rule accepting both for best evidence purposes, we hold that the copies of the three O’Reilly electronically stored receipts and the one O’Reilly electronically stored monthly invoice were properly admitted as originals, given there was no genuine dispute regarding authenticity.
2. Jury instruction
Gauger next argues that the district court erred by instructing the jury that a mistrial would be a burden to the parties, the court, and to taxpayers. Specifically, Gauger challenges the following instruction given to the jury by the district court judge prior to opening statements:
“You must not engage in any activity or be exposed to information that might unfairly affect the outcome of the case. Any juror who violates these restrictions I’ve explained to you jeopardizes the fairness of these proceedings, and a mistrial could result. That would require the entire trial process to start over. As you can imagine, a mistrial is an expense and inconvenience to the parties, the Court, and taxpayers.”
Gauger concedes that he did not object to the district courts instruction below. Appellate courts review instructional errors occurring at the close of evidence and asserted for the first time on appeal for clear error. See K.S.A. 2014 Supp. 22-3414(3). There is, however, no statute that establishes this courts standard of review for instructional errors in a district court’s preliminary instructions. Consequently, Gauger argues that the test for clear error is inapplicable to this case because the instruction he challenges was given at the beginning of the trial and because he was not given a chance to object to the instruction outside of the hearing of the jury as required by K.S.A. 2014 Supp. 22-3414(3). Instead, citing Neely v. Travelers Ins. Co., 141 Kan. 691, 42 P.2d 957 (1935), he argues that the instruction constituted reversible error because it was “ ‘insufferably coercive.’ ”
During the pendency of this appeal, the Kansas Supreme Court decided State v. Tahah, 302 Kan. 783, 358 P.3d 819 (2015), which dealt with an instructional issue almost identical to the issue presented in this case. In Tahah, the district court instructed the newly impaneled jury at the beginning of the trial that “consideration of outside information could result in a mistrial, which ‘is a tremendous expense and inconvenience to tire parties, the Court and the tax payers.’” 302 Kan. at 792. Similar to this case, Tahah did not object to the instruction at trial. On appeal, Tahah characterized the issue as one of judicial misconduct and sought de novo review. But our Supreme Court noted that the clearly erroneous standard predated its statutory codification. It found that it had always reviewed unpreserved instructional error claims for clear error no matter when the alleged error occurred during trial. Therefore, it applied the clear error test to Tahah’s claim. 302 Kan. at 793. Following Tahah, we do the same here.
The test for clear error requires a two-step analysis. First, this court must determine whether there was an error in the instruction, which is a question of law subject to unlimited review. If an error exists, then the court must determine whether reversal is required. To reverse, this court must be firmly convinced that the jury would have reached a different verdict had the error not occurred. This requires a de novo determination based on a review of tire entire record. State v. Armstrong, 299 Kan. 405, 432-33, 324 P.3d 1052 (2014).
In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), the Kansas Supreme Court found that it was erroneous to instruct tire jury after both sides had rested that “ ‘[ajnother trial would be a burden on both sides.’” Although this language was, at-the time, part of the applicable PIK instruction, the court found that the sentence was misleading and inaccurate because a second trial may be burdensome to some but not all parties to a criminal case. It also found that it was confusing because it conflicted with another instruction that directed jurors not to concern themselves with what happened after they arrived at a verdict. 288 Kan. at 266-67. Although the Supreme Court found that the instruction was given in error, it also ruled that reversal was not required under the second prong of the clearly erroneous test. 288 Kan. at 267.
The Tahah court found that Salts was inapplicable to the question presented in that case. Tahah, 302 Kan. at 795. It noted that the instruction at issue in Salts was an Allen-type instruction, which is an instruction that encourages the jury to reach a unanimous verdict so as to avoid a mistrial. Tahah, 302 Kan. at 794; see Allen v. United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Our Supreme Court has “a long and justified history of disapproving Allen-type jury instructions.” Tahah, 302 Kan. at 794. This is because an Allen-type instruction could be inappropriately coercive. Specifically, it could cause jurors to compromise their own views of the evidence only to avoid a hung jury. 302 Kan. at 794-95.
The Tahah court went on to distinguish the preliminary instruction given at Tahahs trial from the unduly coercive instruction given in Salts. It found that the preliminary instruction was not an Allen-type instruction because its character and purpose was entirely different. It was given at the beginning of trial and warned drat a mistrial could result from the jurors’ own misconduct. The Supreme Court found that the prospect of a mistrial due to juror misconduct is equally inconvenient and undesirable for both parties, especially when considering the issue from a pretrial vantage point. It also noted that juror misconduct imposes “grave costs” on the parties and on the integrity of our criminal justice system. Consequently, it found that the instruction was both legally and factually accurate. 302 Kan. at 795.
The instruction at issue here was almost identical to the instruction in Tahah. And just like in Tahah, it was given as a warning to the jurors against committing misconduct. Therefore, there is nothing to distinguish the issue presented here from the one decided in Tahah. This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Ruiz, 51 Kan. App. 2d 212, 233, 343 P.3d 544 (2015). Under Tahah, the instruction challenged here was both legally and factually appropriate. Therefore, Gaugers claim fails.
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The opinion of the court was delivered by
Beier, J.:
This original mandamus action brought by the chief judge and two district court judges of the 26th Judicial District of Kansas against Governor Sam Brownback asks this court to compel the governor to appoint an interim district magistrate judge immediately under the authority of K.S.A. 2015 Supp. 25-312a.
We hold that a 90-day time limit set out in the statute is directory rather than mandatory under our precedent. This means that the timing of the governors appointment is discretionary rather than ministerial. Mandamus cannot be invoked to compel a discretionary act. The governor may therefore, consistent with his stated intention, wait for the result of the primary election on August 2, 2016, before he appoints tire magistrate judge sought by petitioners.
Factual and Procedural Background
District Magistrate Judge Tommy B. Webb was one of five magistrates in the 26th Judicial District until his retirement on Febru ary 19, 2016. The governor received statutorily required notice of Judge Webbs planned departure from the bench on February 5, 2016. See K.S.A. 2015 Supp. 25-312a (clerk to provide notice of vacancy).
The governor informed Chief Judge Bradley E. Ambrosier that day that the governor was accepting applications to fill the vacancy and that an interim magistrate judge would be appointed within the 90-day period prescribed in K.S.A. 2015 Supp. 25-312a.
After receiving applications, the governor wrote a letter to the applicants dated May 25, 2016, i.e., after expiration of the 90 days. The letter stated:
“This is to inform you that I have decided not to make an appointment to the position at this time. Instead, I will defer to the voters of Haskell County, who will have die opportunity to vote on the position in die August 2nd primary election.
“The filing deadline to participate in the election for this position is June 1.”
Counsel for petitioners contacted the governors office on June 13, 2016, and the governor’s office confirmed the governor’s intention to “revisit” the vacancy after the primary election.
Chief Judge Ambrosier, District Judge Linda P. Gilmore, and District Judge Clinton B. Peterson filed this petition for writ of mandamus on June 15, 2016. At the time, four Republican candidates had filed for election to the vacant magistrate judge position. Those candidates will be on the ballot in the primary election on August 2.
The petition specifically seeks a writ requiring the governor to “immediately appoint an interim district magistrate judge for Haskell County.” Petitioners allege the governor “has failed, and in fact refused, to appoint a successor district magistrate judge, in violation of [his] duty” under K.S.A. 2015 Supp. 25-312a, which states that “[a]ny appointment made by the governor . . . shall be made within 90 days following receipt of notice from the clerk of the supreme court.” The petitioners also seek reimbursement of their reasonable attorney fees.
This court ordered tire governor to respond to the petition, which he did on July 11, 2016. The governor advances four arguments on the merits: (1) the 90-day time limit is directory rather tiran mandatory; (2) his general appointment duty is discretionary rather than ministerial; (3) the relief sought by petitioners would violate the separation of powers; and (4) dismissal is appropriate under the doctrine of constitutional avoidance.
Discussion
Because, as detailed below, we decide this case in the governors favor on the basis of his first argument, we need not reach, and express no opinion on the validity of, his remaining arguments. Petitioners’ request for attorney fees is rendered moot, and we will not address it.
Before turning to the merits of the governors first argument, we observe that the parties do not appear to contest the advisability of this courts exercise of discretionary concurrent jurisdiction in this case or the petitioners’ standing to bring this action. Given this lack of controversy, we touch upon these two preliminary considerations only briefly. See Peterson v. Ferrell, 302 Kan. 99, 102-03, 349 P.3d 1269 (2015) (subject matter jurisdiction, including component of standing, may be raised at any time, on courts own initiative).
Article 3, § 3 of the Kansas Constitution grants original jurisdiction in proceedings in mandamus to the Supreme Court. This jurisdiction is discretionary and concurrent; the writ also may be sought in lower courts. See State v. Becker, 264 Kan. 804, 807, 958 P.2d 627 (1998); see also K.S.A. 60-801 et seq.; Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982). To support an original action in this court, a petitioner is required to state “the reason why the action is brought in the appellate court instead of in the district court.” Kansas Supreme Court Rule 9.01(b) (2015 Kan. Ct. R. Annot. 88); see Mobil Oil Corporation v. McHenry, 200 Kan. 211, 242, 436 P.2d 982 (1968). Petitioners have done so here. They assert that the delay inherent in beginning this litigation in district court and the statewide importance of the petition’s subject matter justify its filing in the Supreme Court rather than in Shawnee County District Court.
Both of petitioners’ points are well taken. We have previously considered judicial economy, the need for speedy adjudication of an issue, and avoidance of needless appeals when evaluating whether to exercise discretionary, concurrent jurisdiction over an original action. See State ex rel. Stephan v. Kansas House of Representa tives, 236 Kan. 45, 53, 687 P.2d 622 (1984) (“Without question, if this court declines to exercise jurisdiction in this action, it will be faced with the identical issue in a subsequent appeal from an action before the district court.”); see also Long v. Board of Wyandotte County Comm'rs, 254 Kan. 207, 212, 864 P.2d 724 (1993) (“It is only where an issue of law affects public officials, presents an issue of great public importance and significant state interest, and requires a speedy adjudication that mandamus is an appropriate and proper means to decide the issue.”); State, ex rel., v. State Highway Comm., 132 Kan. 327, 334-35, 295 P. 986 (1931) (“The use of mandamus to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties is common in this state.”). In addition, this case will define a legislatively imposed duty of the governor, a constitutional officer and the leader of the executive branch of state government. The governors timely performance of the duty at issue, as petitioners emphasize, affects the function, fairness, and efficiency of the coequal judicial branch in its service to Kansas citizens. This case thus presents an important public question of statewide importance appropriate for this courts attention in the first instance. See State ex rel. Stephan v. Finney, 251 Kan. 559, 568, 836 P.2d 1169 (1992) (interpretation of governors constitutional authority appropriate for original action filed in Supreme Court); see also Manhattan Bldgs., 231 Kan. 20, Syl. ¶ 4 (mandamus “proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business”).
Turning to standing, this court has allowed original actions in mandamus when the petitioner demonstrates a need “‘to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties.'” Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 498, 14 P.3d 1154 (2000). And the court has determined such guidance questions when the action was brought by state or political actors other than the attorney general on behalf of the State. See Board of Sedgwick County Comm’rs v. Noone, 235 Kan. 777, 779-80, 682 P.2d 1303 (1984) (action in mandamus against district court judge brought by board of county commissioners to secure remittance of fines appropriate vehicle for the guidance of public officials); see also Wilson v. Sebelius, 276 Kan. 87, 88, 90-91, 72 P.3d 553 (2003) (action in mandamus against governor brought by Democratic Party of Shawnee County challenging constitutionality of statutory scheme decided in original action). The petitioners have standing to bring this action.
The governors first argument requires us to perform statutory interpretation or construction, which raises a question of law. State v. Jolly, 301 Kan. 313, 320, 342 P.3d 935 (2015). We routinely recite that our initial task is statutory interpretation, as long as the language used by the legislature is plain and unambiguous. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If the language is less than clear or is ambiguous, we move to statutory construction and use the canons of construction and legislative history and other background considerations to divine the legislatures intent. See 291 Kan. at 216.
The statute at issue in this case, K.S.A. 2015 Supp. 25-312a, reads in pertinent part: “Any appointment made by the governor . . . shall be made within 90 days following receipt of notice from the clerk of the supreme court.” (Emphasis added.) Petitioners argue that the word “shall” creates a mandatory duty on the part of the governor to appoint within the prescribed 90-day period. The governor argues that the word “shall” is merely directory in connection with the time limit. Our decision between mandatory and directory will tell the tale because a merely directory provision is the mark of a discretionary duty, and it is well established that mandamus cannot be invoked to compel a public official to perform a discretionary duty. See Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 872-73, 518 P.2d 410 (1974) (“This remedy may not be invoked to control discretion, or to enforce a right that is in substantial dispute.”) (citing Curless v. Board of County Commissioners, 197 Kan. 580, 419 P.2d 876 [1966]); see also Kansas Bar Ass’n, 270 Kan. at 491 (“ ‘Mandamus may not be invoked to control discretion.’”); Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 260, 671 P.2d 559 (1983) (“It is well established that mandamus will not fie for the performance of an act involving discretion on the part of a public official.”) (citing Topeka Bldg. & Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 [1960]); Martin, Governor, v. Ingham, 38 Kan. 641, 651, 17 P. 162, 168 (1888) (governor subject to mandamus only to compel ministerial acts, not discretionary acts; “ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed”).
We have previously recognized that die legislature s use of the word “shall” can have different meanings in different provisions. Because the words meaning is not plain, statutory construction rather than statutory interpretation is necessary.
Our 2009 decision in State v. Raschke, 289 Kan. 911, 914-21, 219 P.3d 481 (2009), extensively reviewed the relevant historical caselaw on the issue and distilled a four-factor test to be used to determine whether a “shall” in a statute should be understood as directory or mandatory. Courts should consider “(1) legislative context and history; (2) substantive effect on a party’s rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provisions, e.g., elections or notice on charges for driving under tire influence.” 289 Kan. at 921.
The first Raschke factor, legislative context and history, cuts convincingly in favor of the governor in this case.
The 90-day time limit was added to the statute by way of a 2014 set of amendments, the only amendments since 1987. See L. 2014, ch. 82, sec. 25. Earlier language had provided for a 60-day time limit, but it began to run at the time the vacancy occurred rather than at the time the appellate clerk provided notice to the governor. The 2014 amendments added 30 days and started the clock at the notice. They also provided that the clerk had up to 120 days after a vacancy occurred to provide the notice in the first place. See L. 2014, ch. 82, sec. 25. In other words, the legislature decided to substantially lengthen the potential time a judicial position such as the one before us today could remain open. Even if the statutory time limits are met, a vacancy can go unfilled for the 4 months until the clerks notice plus the 3 months of the governor’s process. This total of 7 months contrasts dramatically with the total of 2 months post-vacancy that the statute contemplated before the 2014 amendments. In short, the legislative context indicates less, rather than more, urgency.
The governors response makes another cogent point about legislative context and history by comparing K.S.A. 2015 Supp. 25-312a to a different statute covering other judicial appointments. To understand this comparison, the following basic pieces of information are helpful.
The judicial position at issue in this case is subject to partisan election. About half of the district judges and district magistrate judges in Kansas’ 31 judicial districts obtain their seats by such a selection method. The other half arrive at the bench through a nonpartisan district nominating commission process. In the nonpartisan districts, for district magistrate judge positions, the commission vets the applicants and malees the appointment, see K.S.A. 2015 Supp. 20-2914; for district judge positions, the commission vets tire applicants and submits the names of nominees to the governor, and the governor tiren malees the appointment from among the nominees, see K.S.A. 2015 Supp. 20-2909; K.S.A. 2015 Supp. 20-2911. While K.S.A. 2015 Supp. 25-312a addresses the filling of a vacancy on the bench that arises between elections for a district judge or district magistrate judge seat subject to partisan election, K.S.A. 2015 Supp. 20-2911 speaks to filling district judge vacancies that arise anytime in those judicial districts that use the nonpartisan nominating commission process.
The governor’s comparison of the two statutes accurately observes that both contain time limits for the governor’s action on appointments. But only K.S.A. 2015 Supp. 20-2911 contains a provision designed to control in a situation like that giving rise to this case — when the governor fails or refuses to appoint within the time limit. If such a situation occurs on a district judge vacancy in a nonpartisan nominating commission district, then the Chief Justice of the Supreme Court steps in and makes the appointment. K.S.A. 2015 Supp. 20-2911(a).
The legislature’s creation of the backup plan for gubernatorial appointments in the nonpartisan nominating commission districts demonstrates that it knows how to make sure it has such a plan if it is considered necessary. The fact that it did not put a backup in place for partisan election districts is persuasive evidence that it did not believe one to be necessary for interim appointments such as the one before us today. Reasonable minds may differ on tire wisdom of this policy choice, but the choice is not this courts to make or reform.
On the second Raschke factor, it does not appear that K.S.A. 2015 Supp. 25-312a’s 90-day time limit is meant to confer a specific legal right on any one party. This factor tips the scale toward construction of the word “shall” as directory rather tiran mandatory. See Raschke, 289 Kan. at 916 (quoting, inter alia, City of Hutchinson v. Ryan, 154 Kan. 751, Syl. ¶ 1, 121 P.2d 179 [1942] [where strict compliance with provision essential to preservation of rights of parties affected, to validity of proceeding, provision mandatory; where provision fixes mode of proceeding, time within which official act to be done, provision directory; where provision merely intended to secure order, system, dispatch of public business, provision directory]).
On the third factor — whether the statute contemplates consequences for noncompliance with the 90-day time limit — again, the factor cuts in favor of the governors characterization of tire word “shall” as directory only. Even petitioners’ prayer for relief implicitly acknowledges that at least the most serious consequence of tardiness, i.e., invalidation of any eventual appointment, is not intended by the legislature. They seek an immediate appointment, meaning they do not believe that the governor’s reluctance to appoint on time should deprive him of the power to appoint at all. Indeed, the legislature appears to have provided for no adverse consequences for failure to meet the 90-day time limit. See Raschke, 289 Kan. at 917-18 (citing and discussing, inter alia, Hooper v. McNaughton, 113 Kan. 405, 407, 214 P. 613 [1923] [distinction between directory, mandatory fies in consequence of nonobservance; act done in disobedience of mandatory provision void; directory provision should be obeyed, but act done in disobedience may still be valid]).
The fourth Raschke factor focuses on subject matter of the stat ute at issue. It recognized that statutes dealing with elections and DUI notices tended to be held to be mandatory while statutes “governing order and timing of procedures are more likely to be determined to be directory only.” Raschke, 289 Kan. at 918-20 (collecting numerous cases). The subject matter before us here deals explicitly with timing of the governors appointment, not with his substantive power. This factor also favors the governors argument that the “shall” in K.S.A. 2015 Supp. 25-312a is directory rather than mandatory.
Considering all of the four Raschke factors, we hold that the word “shall” in K.S.A. 2015 Supp. 25-312a should be interpreted as directory. Although the governor should appoint an interim district magistrate judge in a partisan election district within the 90-day time limit set out in the statute, we construe the statute to permit him to do so later.
Conclusion
For all of the reasons discussed above, the petition for writ of mandamus is denied.
Biles, J., and Stegall, J., not participating.
Michael J. Malone, Senior judge, assigned.
David L. Stutzman, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Stegall, J.:
Mike Matson is an inmate in the custody of the Kansas Department of Corrections. Like all inmates, Matson’s property rights are limited. He does, however, take advantage of the statutorily created inmate trust fund to place money in the custody of the Department of Corrections for his use and benefit while serving his sentence.
After becoming dissatisfied with the management of the inmate trust fund, Matson filed this pro se suit in Leavenworth District Court pursuant to the Kansas Uniform Trust Code (KUTC), codified at K.S.A. 58a-101 et seq. He would eventually name as defendants the State of Kansas, the Department of Corrections, and various state officials, including the Warden of the Norton Correctional Facility where Matson was incarcerated at the time. He alleged the defendants were in breach of trust as a result of various fees charged against the balance held in his inmate trust fund. Matson claimed the Department of Corrections’ Internal Management Policies and Procedures authorizing the challenged fees violated both state law and the Fifth Amendment to the United States Constitution.
The defendants quickly moved to transfer venue to Norton District Court in order to better serve tire convenience of the parties. The Leavenworth District Court granted the motion without a hearing and prior to any responsive pleading from Matson. Once the case reached Norton District Court, Matson filed a motion to transfer venue back to Leavenworth District Court. Matson claimed die inmate trust fund is administered at the Lansing Correctional Facility in’Leavenworth County—a fact the defendants have never disputed. Matson argued his claims under the KUTC could only be brought in Leavenworth District Court because K.S.A. 58a-204 sets venue for such claims “in the county of this state in which the trust’s principal place of administration” is located.
The Norton District Court—citing K.S.A. 60-609(a), which permits a change of venue for the convenience of the parties to “any county where [the action] might have been brought”—denied Matson’s motion on the grounds his suit could have been brought in Norton District Court pursuant to K.S.A. 60-602(2) given the Warden of the Norton Correctional Facility was named as a defendant. The district court then granted summary judgment to the defendants on all of Matson’s claims.
On appeal to the Kansas Court of Appeals, Matson reprised his venue arguments and claimed the district court erred in granting summary judgment to the defendants. A panel of the Court of Appeals again rejected Matson’s arguments and affirmed the judgment of the lower court. With respect to venue, tire panel held the “Leavenworth District Court correctly found that Matson could have filed his suit in Norton County under K.S.A. 60-602(2) since one of the named defendants was the warden of the Norton Correctional Facility.” Matson v. Kansas Dept. of Corr., No. 108,992, 2013 WL 6062910, at *2 (Kan. App. 2013) (unpublished opinion).
The panel held K.S.A. 58a-204, setting venue for actions under the KUTC in tire county where the trust is principally adminis tered, would not have prevented Matson from filing his suit in Norton District Court. 2013 WL 6062910, at *2. In so doing, the panel relied on a comment to section 204 of the Uniform Trust Act which states that “ ‘general rules governing venue continue to apply ” in “ ‘most proceedings where jurisdiction ... is based on a factor other than the trust’s principal place of administration.’ ” 2013 WL 6062910, at *2.
Matson timely petitioned this court for review, and we exercise jurisdiction pursuant to K.S.A. 60-2101(b). Because we reverse on the question of venue as discussed below, we need not reach, and express no opinion concerning, the merits of Matson’s various claims. '
Discussion
We apply a deferential standard of review to lower court decisions to change or not to change venue. We will not disturb such rulings absent a showing of an abuse of discretion. State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001). Discretion is abused, however, when its exercise is premised on an error of law. State v. Nelson, 296 Kan. 692, 694, 294 P.3d 323 (2013). Matson contends the Leavenworth District Court’s decision to transfer venue to Norton County, and the Norton District Court’s refusal to transfer it back, were both premised on an erroneous conclusion of law: i.e., his suit could have been brought in Norton District Court in the first place. We agree with Matson.
Whether K.S.A. 58a-204 applies to Matson’s claims and whether that provision required him to file those claims in Leavenworth District Court—and nowhere else—present questions of statutory interpretation over which we exercise plenary review. See State v. Brown, 298 Kan. 1040, 1057, 318 P.3d 1005 (2014). The fundamental rule of statutory interpretation is the intent of the legislature is dispositive if it is possible to ascertain that intent. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). The language of a statute is our primary consideration in ascertaining tire intent of the legislature. 299 Kan. at 906. Where such language is plain and unambiguous, it is typically determinative of legislative intent. State v. O’Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014).
The defendants first contend K.S.A. 58a-204 does not apply to Matson’s claims because the inmate trust fund is not actually a trust and is therefore not subject to the KUTC. But we have no difficulty finding the plain language of the applicable statutes establishes the inmate trust fund is, in fact, a trust subject to the KUTC. In accordance with Kansas law, the Department of Corrections has designated “an officer or employee” to “have custody and charge of all moneys” held by any correctional institution “for the use and benefit of each individual who is... [an] inmate of the institution.” K.S.A. 76-173. “Such moneys shall constitute . . . [an] inmate trust fund.” K.S.A. 76-173.
Generally speaking, a trust subject to the KUTC is created when five conditions are met: (1) a settlor with capacity (2) manifests an intent to create a trust and (3) gives a trustee duties to perform for the benefit of (4) a definite beneficiary where (5) the same person is not the sole trustee and the sole beneficiary. See K.S.A. 58a-402(a). The statutory scheme establishing the inmate trust fund satisfies these criteria. Moreover, die terms of the KUTC make it explicidy applicable to “trusts created pursuant to a statute.” K.S.A. 58a-102.
Having determined the inmate trust fund is a trust subject to the KUTC, we must next decide whether the KUTC establishes exclusive venue in the county where the inmate trust fund is administered—i.e., in Leavenworth County. The venue provision of die KUTC applicable to Matson’s claims is as follows: “venue for a judicial proceeding involving a trust is in the county of this state in which die trust’s principal place of administration has been, is or will be located.” K.S.A. 58a-204. The general statute relied upon by die lower courts to establish Matson’s claims could have been brought in Norton County states actions “against a public officer for an act done or threatened to be done by such officer by virtue or under the color of his or her office, or for neglect of his or her official duties” are required to be “brought in the county in which the cause, or some part tiiereof arose.” K.S.A. 60-602(2).
It is a general rule of statutory interpretation that, when both a general statute and a specific statute govern the same topic, the specific statute controls. See, e.g., State v. Williams, 299 Kan. 911, 930, 329 P.3d 400 (2014). K.S.A. 60-602(2) is a generic venue statute of general applicability. K.S.A. 58a-204 is a specific statute, limited in scope to only tiróse actions governed by tire KUTC. The rule that a general statute should yield to a specific statute is “ ‘merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case/ ” Williams, 299 Kan. at 930 (quoting State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 [1988]). In this instance, it is clear the legislature, in adopting the KUTC, established a specific venue exception to the more general rules. As such, K.S.A. 58a-204 controls the venue question in this case and establishes the exclusive venue for Matson’s claims in Leavenworth District Court. See Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014) (quoting State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 [2012]) (“ ‘ “ Where there is a conflict between a statute dealing generally with a subject, and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case. [Citations omitted.]’ ” ’ ”).
Finally, we cannot approve the Court of Appeals’ efforts to find legislative intent in the commentary appended to the uniform law but not adopted into law by our legislature. Such material is outside the plain language the legislature used to express its intent. See State v. Roudybush, 235 Kan. 834, 846, 686 P.2d 100 (1984) (“[T]he comments following the text of a statute are not a part of the legislative enactment, but are extrinsic evidence to be used as an aid in construction only if the language of the statute is ambiguous.”). Arguably, the legislature’s choice to not expressly include the substance of tine comment in the KUTC—as many other states have done—indicates a contraiy intent. See, e.g., Ala. Code § 19-3B-204 (2007) (venue for actions involving a trust proper “in any county where venue is proper for civil actions generally”); see also Fla. Stat. § 736.0204 (2014) (venue proper in any county where the venue is proper under rules of civil pi'ocedure); Mich. Comp. Laws § 700.7204 (2013) (venue for trust may be “[a]s otherwise specified by court rule”); Mont. Code Ann. § 72-38-205 (2013) (Except as otherwise stated in the statute, “the proper county for commencement of a proceeding pursuant to this chapter is determined by the rules applicable to civil actions generally.”); Neb. Rev. Stat. § 30-3815 (2008) (venue statute allows court to transfer proceeding to another court “in the interest of justice”). The KUTC contains no similar provision indicating a legislative intent to incorporate the substance of the comment into Kansas law.
Having found that venue was exclusively in Leavenworth County, the question of remedy arises. In certain rare cases, an erroneous change of venue may be harmless error. See Alliance Life Ins. Co. v. Ulysses Volunteer Fireman’s Relief Assn., 215 Kan. 937, 942, 529 P.2d 171 (1974) (improper venue was harmless when tire case was decided as a matter of law on stipulated facts). However, the party benefiting from the error has the burden to come forward with a showing of harmlessness. Kansas City Mall Assocs. v. Unified Gov’t of Wyandotte County/KCK, 294 Kan. 1, 8, 272 P.3d 600 (2012). Here, the defendants have not done so. Therefore, because the change of venue from Leavenworth District Court to Norton District Court was error in this case, we reverse and remand this matter to the Leavenworth District Court.
The opinion of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded to Leavenworth District Court for further proceedings.
Biles, J., concurring: I agree it was error to transfer venue to Norton County. This case properly belongs in Leavenworth District Court as our court has now held. I write separately to emphasize that our decision necessarily vacates the other aspects of the Court of Appeals decision, including the panel’s conclusion that the inmate lacked standing and upholding the Internal Management Policy and Procedure (IMPP). In my view, what needs to happen next is a deeper review into the practices brought to light by this inmate’s lawsuit and the parties’ claims and defenses on the merits. I wish to note a few concerns.
Matson questions whether the Department of Corrections could legally implement the IMPP without notice-and-comment rule-making. This appears to be a colorable issue that will benefit from further probing. Certainly, on a system-wide basis, the amounts involved appear substantial if the affidavit Matson supplied to the district court is accurate: that his mothers monthly deposit of $56.40 is reduced to $45 before it reaches his spending account. Matson v. Kansas Dept. of Corr., No. 108,992, 2013 WL 6062910, at *1 (Kan. App. 2013) (unpublished opinion).
What we know from the record is that under IMPP 04-103: (1) effective January 1, 2011, deposits into inmate trust accounts were required to be submitted electronically through private contractors who, in turn, charged a per-deposit fee; and (2) each inmate’s pro rata share of interest earned by the fund each interest period was reduced by the inmate’s share of applicable banking fees. But when KDOC implemented the IMPP, its own regulation provided that “[a]ll funds sent for deposit to an inmate’s trust account shall be in tire form of a money order, a cashier’s check, or a certified check. The funds shall be sent to the centralized banking location . . . .” (Emphasis added.) K.A.R. 44-12-601(b)(5).
Therefore, the IMPP appears to contradict on its face a properly issued administrative regulation, which had the force and effect of law. See K.S.A. 2014 Supp. 77-415(c)(4). If so, the Department of Corrections operated for more than 3 years with a practice that siphoned off someone’s money by ignoring its own regulation and depriving both the inmates and the general public of a free-of-cost method for sending and receiving money intended for an inmate’s benefit. How can the IMPP trump a lawfully adopted administrative regulation and simply eviscerate it?
The Court of Appeals avoided this question by holding that Matson lacked standing to challenge the IMPP’s deposit requirements—despite its possible illegality. This appears to be premised on the agency’s argument that the IMPP applied only to those who sought to deposit their money into the trust for the inmate’s benefit. But if that were the case, how does that reconcile with tire district court’s recitation of uncontroverted facts and an exhibit attached to the agency’s motion to dismiss characterizing the third-party vendor's’ fees as deductions from amounts deposited, rather than surcharges assessed against the depositor?
Another explanation offered is that the existing rule did not expressly prohibit the agency from establishing an IMPP regarding banking and deposit procedures. Matson, 2013 WL 6062910, at *7. But this observation fails to address how the procedures in IMPP could conflict with and effectively trump those set out in the regulation.
And as to the bank service fees deducted from earned interest, the Court of Appeals concluded the general rule requiring notice- and-comment rulemaking did not apply because of an internal management exception to the general notice-and-comment rule-making requirements set out in law. See Matson, 2013 WL 6062910, at *6. Under that exception, a “statement of agency policy may be treated as binding within the agency if such statement of policy is directed to . . . [t]he internal management of or organization of the agency.” K.S.A. 2014 Supp. 77-415(b)(2)(B). But this statute also provides that “[n]o such statement . . . may be relied upon to bind the general public.” K.S.A. 2014 Supp. 77-415(b)(2)(B).
In other words, the district court will need to look closely whether each challenged aspect of the IMPP, which on its face authorizes the deduction of account maintenance expenses from tire prisoners’ earned interest and compels the general public to use of the agency’s fee-based, third-party deposit services, is truly a matter of “internal management.” See Californians for Pesticide Reform v. Department of Pesticide Regulation, 184 Cal. App. 4th 887, 907, 109 Cal. Rptr. 3d 428 (2010) (describing exception to notice-and-comment rulemaking for regulations relating “only to the internal management of the state agency” as a narrow exception “inapplicable where a rule is to have general application and is to affect persons subject to regulation by the agency”).
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Pierron, J.;
The State appeals from the district court’s dismissal of two counts of criminal possession of a firearm and one count of possession of marijuana after a prior conviction filed against Richard Evans, III. The court found Evans’ prior guilty pleas to be felonies in Missouri, which resulted in suspended imposition sentences (SIS), were not convictions to serve as predicate convictions under K.S.A. 2013 Supp. 21-6304 or K.S.A. 2013 Supp. 21-5706. Below, the court relied on its interpretation of State v. Pollard, 273 Kan. 706, 714, 44 P.3d 1261 (2002). The State dismissed the remaining charge of no tax stamp on drugs and appealed from the dismissal of two criminal possession of firearms counts and one count of possession of marijuana. We reverse and remand.
Facts
In April 2013, the State charged Evans with various felonies. Counts I and II were charges of criminal possession of a firearm by a convicted felon in violation of K.S.A. 2013 Supp. 21-6304. Count III was possession of marijuana after a prior conviction of possession, in violation of K.S.A. 2013 Supp. 21-5706(b). Count IV was failure to affix a drug tax stamp to tire marijuana in violation of K.S.A. 79-5208.
At the preliminary hearing, the State presented—without objection—certified copies of court records from Missouri. The records established that Evans had pled guilty to at least one felony and to another charge of possession of marijuana. During the hearing, police officers testified they had contacted the occupants of a Johnson County, Kansas, home on suspicion of drug activity. Evans was one of those occupants. During the investigation, officers found a .40 caliber handgun on Evans’ person. In addition, a search of Evans’ car resulted in the finding of another handgun and approximately 30 grams of marijuana. Officers saw that there was no drug stamp tax affixed to the marijuana.
The district court bound Evans over for trial, although there was discussion as to whether the prior Missouri offenses were sufficient to serve as convictions for the weapons and second-time marijuana possession charges.
Prior to trial, Evans filed a motion to dismiss the firearm and possession of marijuana charges. He argued that all three of these charges required a prior conviction of either a felony or a prior conviction of possession of marijuana as predicate offenses. Evans argued his prior charges in Jackson County, Missouri, were guilty pleas with SIS. He also asserted he had successfully completed the probation terms for those charges. Evans contended that under Missouri law, successful completion of the probation closed the Missouri case and did not constitute a conviction. Citing Pollard, Evans argued the Missouri charges did not constitute convictions and could not serve as predicate offenses supporting the firearms and second-time possession of marijuana charges. The State filed a response opposing Evan’s motion to dismiss, also relying on Pollard.
The district court held a hearing in November 2013, where both sides argued whether a Missouri conviction with SIS constituted a conviction for purposes of the weapons and marijuana charges filed in Kansas. The State presented certified copies of documents from two Missouri criminal cases. In case No. 0816-CR04967, Evans had been arrested for possession of approximately 28 grams of mari juana and pled guilty to that charge. The Missouri court accepted the plea and suspended imposition of that sentence for 1 year. The court ordered Evans to pay court costs and to be supervised through the Midwest ADP drug program.
In case No. 0916-CR06242, the charging documents reflected that Evans had been charged in Jackson County, Missouri, with three counts of the sale of more than 5 grams of marijuana and one count of possession of more than 35 grams of marijuana. Later documents reflected Evans had pled guilty in June 2010 to the three counts of sale of a controlled substance, class B felonies under Missouri law. The Missouri court found Evans guilty beyond a reasonable doubt of those charges. The court suspended imposition of sentence for 3 years and ordered that tire Missouri Board of Probation and Parole supervise Evans during that period. The court also ordered Evans to pay $68 to the Crime Victims’ Compensation Fund and court costs. In January 2011, the court found Evans had violated the terms of his probation and ordered him to remain on suspended status until otherwise released.
During the hearing on the Johnson County, Kansas, cases, Evans presented documentary evidence—not included in the record— that he had been released from his SIS in December 2011. He argued he had successfully completed his probation on all the charges and under Missouri law the charges were not convictions. Defense counsel acknowledged that the charges could be used against Evans at sentencing if he was ever charged again in Missouri but it did not make him a felon at the time he possessed the weapon in tire case at bar. Evans relied heavily on language in Pollard, 273 Kan. at 714, that limited its ruling to the facts in the case and did “not decide if the result would be the same if the Kansas offense had occurred after the expiration” of a Missouri defendant’s probation. Defense counsel argued that although Evans had been found guilty in the Missouri cases, no sentence was imposed, the judgment was not final, and as such, it was not a conviction.
Both parties agreed that Pollard controlled the decision, but they disagreed as to the impact of Pollard. Ultimately, the district court announced from tire bench that Evans had successfully completed his SIS in Missouri and, therefore, he had not been convicted. As a result, the predicate offenses for the weapons charges and the second-time possession of marijuana charge had not been established, and the court dismissed those charges.
Two days later, the State filed a motion asking the district court to reconsider the order of dismissal. At another hearing on December 13, 2013, the State again argued a conviction for purposes of the predicate act would be determined by Kansas law, not Missouri law. Based upon Pollard, the State again argued Evans’ prior guilty pleas to felony charges of sale and possession of marijuana were sufficient to constitute convictions in Kansas, notwithstanding the Missouri SIS statute. However, the court denied the motion.
A journal entry dismissing all charges except the drug tax stamp charge was filed on December 3,2013. Shortly thereafter, the State dismissed the remaining charge and filed a notice of appeal challenging the dismissal of the weapons and possession of marijuana charges.
The sole issue on appeal is whether the district court misinterpreted tire statutes and thereby improperly dismissed the weapons and possession of marijuana charges the State had filed against Evans. Thus, the question is whether Evans’ guilty pleas with successful completion of the SIS constituted convictions under K.S.A. 2013 Supp. 21-6304 and K.S.A. 2013 Supp. 21-5706(c)(2)(B).
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 (2014). When interpreting a statute, the court must first determine the legislature’s intent through the statute’s language, by giving words their ordinary meaning. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Even when statutory language is clear, however, the appellate court can consider certain canons of construction and construe statutes in order to avoid “unreasonable or absurd results.” Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013).
K.S.A. 2013 Supp. 21-6304(a)(l) defines criminal possession of a firearm as possession of such a weapon by a person who “[h]as been convicted of a person felony or a violation of article 57 of chapter 21... or a crime under a law of another jurisdiction which is substantially the same as such felony or violation
K.S.A. 2013 Supp. 21-5706 prohibits unlawful possession of controlled substances as designated Chapter 65 of the statutes. See K.S.A. 2013 Supp. 21-5706(b)(4). Marijuana is included in the list of controlled substances. K.S.A. 2013 Supp. 65-4105(d)(16). A first-time violation of K.S.A. 2013 Supp. 21-5706(b)(4) is a class A misdemeanor. K.S.A. 2013 Supp. 21-5706(c)(2)(A). However, a violation of K.S.A. 2013 Supp. 21-5706(b)(4) is a severity level 5 drug felony if the person “has a prior conviction under such subsection [or] under a substantially similar offense from another jurisdiction . . . .” (Emphasis added.) K.S.A. 2013 Supp. 21-5706(c)(2)(B). Article 57 of die criminal code does not contain a definition of “prior conviction.”
The revised criminal code defines a “conviction” as including “a judgment of guilt entered upon a plea of guilty.” K.S.A. 2013 Supp. 21-5111(d). Nothing in that definition specifically requires any particular type of sentence be imposed in order to constitute a conviction. 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. Brooks, 298 Kan. at 685.
Despite the broad nature of the term “conviction” found at K.S.A. 2013 Supp. 21-5111(d) (and its predecessor, K.S.A. 21-3110[4]), Evans argues that the prior guilty pleas he entered in the two Missouri cases—that included felony charges and a possession of marijuana charge—were not convictions. While he does not dispute the nature of the prior charges, he argues that he successfully completed probation for his charges, and under the Missouri SIS procedure, those charges do not count as a conviction. See Mo. Rev. Stat. § 557.011.2(3) (2013 Supp.).
In Missouri, defendants who successfully complete probation are also not considered to possess a conviction in various civil contexts. For example, in CFM Insurance, Inc. v. Hudson, 432 S.W.3d 797 (Mo. App. 2014), the court rejected an insurer’s efforts to rescind an insurance policy based on the insured’s misrepresenta tion by failing to disclose he had a prior conviction for felony nonsupport. However, the insured’s plea of guilty resulted only in a SIS and thus was not a conviction under Missouri law. 432 S.W.3d at 800-01; see also Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. 1993) (employee’s guilty plea and successful completion of SIS was not a conviction for purposes of allowing termination of his employment under state law); Hemphill v. Pollina, 400 S.W.3d 409, 414-15 (Mo. App. 2013) (not a conviction for purposes of witness impeachment in tort case). The Missouri Legislature designed the SIS procedure to allow defendants who successfully complete probation to avoid foe stigma of a conviction. State v. Jones, 398 S.W.3d 518, 523 (Mo. App. 2013).
However, there remain some consequences in criminal and some other contexts under Missouri law. A defendant who successfully completes a SIS probation for a sex charge may still be required to register as a sex offender under Missouri law. State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158, 159-60 (Mo. 2007). Moreover, the information from the case can be provided to federal prosecutors and used to impeach a defendant’s testimony in a federal criminal proceeding. Smith v. State, 757 S.W.2d 659, 661 (Mo. App. 1988); see also Mo. Rev. Stat. § 577.023.16 (2013 Supp.) (evidence of a plea of guilty followed by SIS of any intoxication-related traffic offense is counted as a prior conviction under Missouri’s enhanced penalties for driving while intoxicated offenses); Mo. Rev. Stat. § 302.700.2(12) (2013 Supp.) (guilty plea with SIS is counted as an offense for purposes of revoking a commercial driver’s license).
As noted above, the Kansas Supreme Court addressed the question of whether a Missouri guilty plea with a SIS disposition can constitute a predicate offense for criminal possession of a firearm in Pollard, 273 Kan. 706. The parties disagree, however, on the impact of Pollard because the facts in that case were different. Pollard pled guilty in Missouri to attempted burglary, a felony. The Missouri court suspended imposition of sentence and placed Pollard on probation for 2 years. One of the conditions of his probation prohibited him from possessing any firearms. Before the 2-year probation term expired, Kansas charged Pollard with criminal pos session of a firearm and unlawfully altering the firearm’s identification marks. Pollard moved to dismiss the possession charge arguing, as Evans does here, that his offense in Missouri was not a prior conviction under then K.S.A. 2001 Supp. 21-4204(a)(3). The district court agreed and dismissed the charge, and tire State appealed.
The Pollard court acknowledged that under Missouri law a SIS was not a final judgment of a conviction. 273 Kan. at 708. However, the court rejected Pollard’s reliance on a federal case because the federal firearm statute contained a choice-of-law provision. Under that provision the federal statute specified drat the law of the jurisdiction where the proceedings were held determines what constitutes a conviction of a felony. 273 Kan. at 709 (citing 18 U.S.C. § 921 [a] [20] [2000]). The court noted that “in the absence of a choice-of-law provision mandating application of the law of tire state where the predicate offenses occurred,” the law of the state where tire possession occurred should control in determining whether the defendant had a prior conviction. 273 Kan. at 710.
The Pollard court then turned to interpreting Kansas law. Acknowledging the rule of lenity, the court held the primary rule of statutory interpretation is to ensure a reasonable and sensible interpretation to carry out legislative intent. The court found that Pollard’s narrow reading of conviction within the meaning of K.S .A. 2001 Supp. 21-4204(a)(3) would create an illogical result. 273 Kan. at 712. The language in the statute relied upon in Pollard is substantially similar to the applicable portion of the current statute.
The Pollard court recognized that under K.S.A. 21-3110(4) (now codified at K.S.A. 2013 Supp. 21-5111[d]) a conviction includes a “judgment of guilt entered upon a plea of guilty.” Because the Missouri court in Pollard’s prior cases found him guilty and entered a judgment of guilt, Pollard had a prior conviction at the time he possessed the firearm in Kansas. 273 Kan. at 712-14. The Pollard court also noted that based on several Court of Appeals’ decisions, Pollard’s adjudication would constitute a conviction for purposes of determining a defendant’s criminal history score under the sentencing guidelines. 273 Kan. at 713-14. The court concluded that a person who admits committing one of the enumerated predicate felonies “admits to actions the Kansas Legislature has deemed to render that person unfit to possess a firearm” and under Kansas law, the Missouri proceeding “is the equivalent of a conviction of the predicate felony.” 273 Kan. at 714.
Despite this clear ruling, Evans cites to the concluding paragraph in Pollard:
“It should be noted that the alleged firearm possession in Kansas occurred within Pollard’s 2-year probationary period for the Missouri felony. Our decision is limited to those facts and does not decide if the result would be the same if the Kansas offense had occurred after the expiration of the 2-year period.” (Emphasis added.) 273 Kan. at 714.
Evans asserts this limiting paragraph indicates tire Pollard court believed that a completion of the SIS probation term for his Missouri offense would result in a different decision that there was no conviction of the predicate act. This distorts the court’s statement that Pollard “did not decide the issue” into an assertion that “a different result necessarily occurs.”
However, the Missouri order imposing the SIS still adjudged Evans guilty of the felony drug charges, including possession of marijuana. Under K.S.A. 2013 Supp. 21-5111(d), the Missouri court entered a judgment of guilt based upon a guilty plea and, thus, a conviction exists under Kansas law. As acknowledged by the Pollard court, the focus of Kansas law is to “inhibit a defendant’s refusal to renounce criminal behavior”; thus, the focus is on “ whether the foreign state concluded the defendant did the crime[], not whether he or she ultimately had to do the time.’ [Citation omitted.]” 273 Kan. at 714. As recognized in the more recent decision of State v. LaGrange, 294 Kan. 623, 630, 279 P.3d 105 (2012): “One of the obvious purposes of prohibiting firearm possession by a person who has previously been convicted of a serious felony is to protect the public.” Therefore, treating out-of-state felons differently from Kansas felons is not a logical interpretation of legislative intent. See 294 Kan. at 630-31.
The Kansas courts have continued to follow Pollard in the context of determining what constitutes a conviction for purposes of determining criminal history. See State v. Hankins, 49 Kan. App. 2d 971, 981-85, 319 P.3d 571 (2014) (finding that a deferred sen tence imposed after a defendant’s guilty plea in Oklahoma was a conviction for purposes of defendant’s criminal history score), petition for rev. filed March 19, 2014; State v. Siesener, 35 Kan. App. 2d 649, Syl. ¶ 5, 137 P.3d 498 (2005) (criminal history properly included Missouri offense since defendant plead guilty, although he received a suspended imposition of sentence), rev. denied 281 Kan. 1381 (2006). Evans cites to no post-Pollard opinion that reflects any tendency to alter its holding in that case. See State v. Reese, 300 Kan. 650, Syl., 333 P.3d 149 (2014).
Moreover, other states have chosen to apply their own law to determine the effect of out-of-state convictions in a variety of contexts. For example, in Brown v. Handgun Permit Review Bd., 188 Md. App. 455, 486-88, 982 A.2d 830 (2009), the court upheld the denial of Brown’s application to renew his handgun permit based upon an out-of-state conviction for which Brown received probation. The Maryland court found the denial was proper because such a conviction would bar a person from receiving a gun permit if the crime had occurred in Maryland. 188 Md. App. at 480-81; see also State v. Moya, 141 N.M. 817, 819-22, 161 P.3d 862 (2007) (rejecting the argument that prior conviction of Utah misdemeanor could not be treated as a felony conviction; New Mexico law controlled whether conviction was misdemeanor or felony); State v. Menard, 888 A.2d 57, 61 (R.I. 2005) (defendant was properly convicted of unlawful possession of a firearm because his prior Arizona conviction for arson was a “ 'crime of violence’ ” under Rhode Island law); Farnsworth v. Com., 43 Va. App. 490, 496-98, 599 S.E.2d 482 (2004), aff'd 270 Va. 1, 613 S.E.2d 459 (2005) (defendant could be convicted of unlawful possession of a firearm by a felon based on West Virginia felony, even though defendant’s civil rights were restored under West Virginia law), overruled on other grounds by Gallagher v. Commonwealth, 284 Va. 444, 732 S.E.2d 22 (2012). As the Menard court noted, it would be absurd to assume that “our Legislature intended to accord another state’s lawmakers the ability to determine the propriety of firearm prosecutions in Rhode Island.” 888 A.2d at 61.
Even the Missouri courts have recognized that not all collateral consequences from a guilty plea and SIS can be avoided under various circumstances. For example, in Roe v. Replogle, 408 S.W.3d 759, 766-67 (Mo. 2013), the Missouri Supreme Court held drat for purposes of the federal sex offender registration act, see 42 U.S.C. §16901 (2012) et seq., Roe’s guilty plea and SIS counted as a conviction under federal law and the federal statute requiring registration was constitutional. Likewise, the criminal file constitutes an open record accessible to the public until probation is complete and the court discharges the defendant. State v. Seay, 330 S.W.3d 823, 827 (Mo. App. 2011).
The prevailing weight of Kansas law calls for the reinstatement of the charges against Evans. In light of the undisputed evidence that Evans had pled guilty to and was found guilty of possession of marijuana and various drug-related felonies in Missouri, the State has established the element of the required predicate offenses for criminal possession of a firearm and possession of marijuana (second offense). The Pollard court made it clear that Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea, K.S.A. 2013 Supp. 21-5111(d), even if a sentence has not yet been imposed. See State v. Holmes, 222 Kan. 212, 213-14, 563 P.2d 480 (1977) (defendant who pled guilty to and was found guilty of a felony could be charged with criminal possession of a firearm even though he had not yet been sentenced on foe predicate felony).
The Kansas Legislature is entitled to determine its own standards of what conduct constitutes a crime in Kansas. Accordingly, whether Evans’ criminal prosecution was considered final for appeal purposes in Missouri is irrelevant. See 222 Kan. at 213-14. Whether Evans’ actions would constitute criminal possession of a firearm in Missouri also is irrelevant. While the Kansas Legislature has deferred to foe law of other jurisdictions for purposes of determining whether a prior conviction is a felony or misdemeanor, see K.S.A. 2013 Supp. 21-6811(e), Evans cites to no other provision where the legislature has deferred to another state’s law for determining any other aspect of our criminal code. Accordingly, the district court erred in using Missouri law in determining whether Evan’s crimes in Missouri constituted convictions in this case.
We, therefore, reverse the district court’s order dismissing the charges.
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Schroeder, J.:
On appeal, Kenneth Boysaw claims: (1) There was insufficient evidence to convict him of indecent liberties with a child; (2) the district court improperly applied K.S.A. 2015 Supp. 60-455(d) in allowing his prior Nebraska conviction for sexual assault of a child to be admitted before the jury to show propensity to commit sexual acts; and (3) the district court improperly used his prior Nebraska conviction to sentence him to lifetime imprisonment without parole as a habitual sex offender in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) . We find no error by the district court and affirm.
Facts
Kenneth Boysaw was charged with aggravated indecent liberties with a child in violation of K.S.A. 2015 Supp. 21-5506(b)(3)(A). Pursuant to K.S.A. 2015 Supp. 60-455(d), the State filed a motion to admit evidence of Boysaws 1987 Nebraska conviction for sexual assault of a child.
At a pretrial hearing on the State s motion, the State requested admission of Boysaw’s two prior sex-related convictions, one in 1979 and one in 1987. The district court found there was a “striking similarity” between the 1987 act and the currently charged act, but not the 1979 conviction, and denied admission of the 1979 conviction. The district court also found that the time elapsed since the 1987 conviction, the frequency of tire prior acts, and any intervening events did not prohibit admission of the 1987 conviction. The district court agreed the conviction could be admitted to show propensity and for proving intent, absence of mistake, and absence of accident. Prior to Boysaws jury trial, the State limited the request for admission of the 1987 conviction to propensity only. The district court allowed the evidence over Boysaws objection in the form of a limited stipulation announced to the jury after the content of the stipulation was agreed to by Boysaw and the State. The stipulation reflected:
“1. That the defendant, Kenneth Boysaw, was convicted of the crime of Sexual Assault of a Child on February 12,1987.
“2. Specifically, the defendant, Kenneth Boysaw, on August 25th, 1986, a date when he was 36 years of age[,] touched B.J.H. in a sexual manner. B.J.H. was a female aged 9 years at the time of the touching. In the basement of his home, he removed B.J.H.’s panties and touched her vagina with his hand in a rubbing motion. He did not penetrate her. Mr. Boysaw opened his pants exposing his penis and touched himself.”
At trial, G.E.M., who was 6 year's old at the time she was improperly touched, testified she was riding an electric scooter at her grandfathers apartment. The scooter belonged to “her friend” (Boysaw). G.E.M. ran into a trashcan and received “a little scratch” on her left arm. After tire accident, Boysaw asked G.E.M. if she wanted popcorn, and they went back to his apartment. G.E.M. testified that while they were sitting on the couch, Boysaw rubbed her “private part” with his whole hand.
G.E.M.s mother testified G.E.M. had been riding Boysaw’s scooter and someone would check on G.E.M. every 5 or 10 minutes. When G.E.M. s mother couldn’t find G.E.M., she began looking for her. G.E.M. s mother walked over to Boysaw’s apartment and, through the open door, saw G.E.M.’s pants and underwear around her anides while G.E.M. sat between Boysaw’s legs. She testified Boysaw’s pants were unfastened, and he had to adjust his penis to refasten them. She did not see his penis.
Officer Virgil Miller testified regarding his interviews with G.E.M., her mother, and Boysaw. Officer Miller testified that Boy-saw told him he was checking G.E.M. for injuries, her pants were around her anides because he was looking for an injury on her leg, and his penis was never outside his pants. Officer Miller also testified Boysaw specifically denied pulling G.E.M. s pants completely down.
At the close of the State s case in chief, the district court judge advised the juiy both the State and Boysaw were stipulating that Boysaw had been convicted of sexual assault of a child in 1987. The stipulation as read to the jury also provided a summary of the facts in the 1987 conviction, including the age of the victim and the manner of the assault.
The jury returned a guilty verdict. At sentencing, Boysaw s criminal history in the presentence investigation report (PSI) reflected a 1979 conviction for attempted indecent liberties and a 1987 Nebraska conviction substantially similar to indecent liberties with a child or aggravated indecent liberties with a child. The district court sentenced Boysaw to life imprisonment without the possibility of parole as a habitual sex offender. Boysaw timely appealed.
Analysis
Sufficiency of the Evidence
Boysaw claims the evidence was insufficient to convict him of aggravated indecent liberties with a child. Specifically, he argues the State did not present- direct or circumstantial evidence of his intent to arouse or satisfy his sexual desires.
When sufficiency of the evidence is challenged in- a criminal case, tire appellate court reviews all the evidence in the light most favorable to the prosecution. The conviction will be upheld if the court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on the evidence presented. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). The appellate court generally will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a' guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983); see State v. Naramore, 25 Kan. App. 2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998) (uncontroverted expert testimony that defendant physician s treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).
Aggravated indecent liberties with a child is a specific intent crime. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011). Pursuant to K.S.A. 2015 Supp. 21-5506(b)(3)(A), aggravated indecent liberties with a child is defined as, in relevant part: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both,” when the child is less than 14 years old. (Emphasis added.) Actual arousal or satisfaction of the child or offenders sexual desires is unnecessary. State v. Brown, 295 Kan. 181, 201, 284 P.3d 977 (2012). The intent to arouse sexual desires may be shown by circumstantial evidence. State v. Clark, 298 Kan. 843, 850, 317 P.3d 776 (2014).
A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689. However, tire circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
Based on the direct evidence, or inferring from the circumstantial evidence given regarding how G.E.M. was found with Boy-saw, there was both direct and circumstantial evidence sufficient for the juiy to find his intent was to arouse or satisfy his sexual desires. G.E.M. s mother testified G.E.M.⅛ pants and underwear were around her ankles when G.E.M. s mother entered Boysaw’s doorway. G.E.M. testified Boysaw touched her “private part” and was “rubbing it” with his hand. G.E.M.’s mother testified Boysaws pants were unfastened and he had to adjust himself through his clothing to refasten them. Though G.E.M. had been injured when she crashed Boysaws scooter, she testified her injury was a little scratch on her left arm. Thus, there was sufficient evidence to convict Boysaw of aggravated indecent liberties with a child.
KS.A. 2015 Supp. 60-455(d) Is Constitutional.
On appeal, Boysaw claims: “K.S.A. [2015 Supp.] 60-455(d) erodes the fundamental right to a presumption of innocence by allowing a jury to consider a defendant’s prior convictions for general propensity purposes.... [T]he statute [is] unconstitutional because it denies defendants the right to a fair trial and due process under both the Kansas and [United States] Constitutions.” Boysaw fails to argue K.S.A. 2015 Supp. 60-455(d) violates a defendant’s rights to a fair trial and due process under the United States Constitution. A point raised incidentally in a brief and not argued is deemed waived and abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). With no claim made under the United States Constitution and deemed waived, we proceed to address Boysaw’s claim under the Kansas Constitution Bill of Rights §§10 and 18.
K.S.A. 2015 Supp. 60-455(d) states:
“Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense ..., evidence of the defendant’s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” (Emphasis added.)
Determining a statute’s constitutionality is a question of law subject to unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. 299 Kan. at 121. If there is any reasonable construction that would maintain the legislature s apparent, intent, the court must interpret the statute in the way that makes it constitutional. 299 Kan. at 121.
Historical Perspective of Lustful Disposition and Propensity
Our Kansas Supreme Court in 1901 recognized that, generally, evidence of the commission of unrelated crimes is inadmissible in a criminal case as prejudicial. State v. Kirby, 62 Kan. 436, 444, 63 P. 752 (1901) (“The general rule is that the charge upon which a person is being tried cannot be supported by proof that he committed other offenses, even of a similar nature.”). However, in 1904, the Kansas Supreme Court recognized an exception to this general rule: “It is well settled that, in prosecutions for a single act forming a part of a course of illicit commerce between the sexes, it is permissible to show prior acts of the same character.” State v. Borchert, 68 Kan. 360, 361, 74 P. 1108 (1904).
In State v. Stitz, 111 Kan. 275, 276, 206 P. 910 (1922), overruled by State v. Taylor, 198 Kan. 290, 292, 424 P.2d 612 (1967), the Kansas Supreme Court expanded on Borchert:
“[I]n sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, and these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.” Ill Kan. at 276.
In a 1926 statutory rape case, the Kansas Supreme Court found: “In offenses of this class, proof of other acts of intercourse may be received to show the lustful disposition of the defendant.” State v. Bisagno, 121 Kan. 186, 188, 246 P. 1001 (1926).
The Kansas Supreme Court continued to apply the lustful disposition exception through the 1940s and 1950s. In State v. Funk, 154 Kan. 300, 302, 118 P.2d 562 (1941), testimony of two other girls was admissible to show the defendant s lustful disposition “and the system used with other young girls in taking indecent liberties with them.” Similarly, in State v. Allen, evidence of the defendants'two previous attempts to force women to have intercourse with him was admissible. The court stated: ‘"Whatever the rule may be elsewhere it is no longer open to dispute in this jurisdiction that this evidence was admissible.” 163 Kan. 374, 376, 183 P.2d 458 (1947), disapproved of by Taylor, 198 Kan. at 292. In State v. Whiting, 173 Kan. 711, 712-13, 252 P. 884 (1953), the testimony of two other girls regarding similar acts committed against them was admissible: “[W]hen a defendant is on trial for a sexual offense similar offenses may be introduced for the purpose of showing the lustful disposition or nature of the defendant.” Likewise, in State v. Smit, 184 Kan. 582, 585, 337 P.2d 680 (1959), the Kansas Supreme Court determined: “[I]n cases involving lewd and lascivious conduct in sexual matters, evidence of other similar acts is admissible to show tendencies and lustful disposition.”
In 1963, the legislature enacted K.S.A. 60-455:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
After the enactment of K.S.A. 60-455, the Kansas Supreme Court found: “This statute defines the purposes for which evidence of similar offenses may be admitted.” Taylor, 198 Kan. at 292. It further held: “[A] trial court should limit its instructions concerning the purposes for which similar offenses may be considered to those purposes set out in the statute and purposes analogous thereto” and disapproved of the language in Stitz and Allen. Taylor, 198 Kan. at 292-93. Evidence of prior sexual crimes was no longer admissible to prove a defendant s lustful disposition, but it was still admissible to prove some other material fact.
In State v. Prine, 287 Kan. 713, 736, 200 P.3d 1 (2009) (Prine I), the Kansas Supreme Court determined evidence of prior sexual assaults on the defendant s daughter and half-sister was erroneously admitted to show intent, absence of mistake or accident, and plan in the defendants trial for rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. In its opinion, tire Kansas Supreme Court invited the legislature to amend K.S.A. 60-455:
“Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus, that convictions of such crimes are especially vulnerable to successful attack on appeal. This is disturbing because the modem psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527-28 (4th ed.1994) (302.2-Pedophilia). And our legislature and our United States Supreme Court have decided that a diagnosis of pedophilia can be among the justifications for indefinite restriction of an offenders liberty to ensure the provision of treatment to him or her and the protection of others who could become victims. See K.S.A. 59-29a01 et seq.; Kansas v. Crane, 534 U.S. 407, 409-10, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 356-60, 371, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (Kansas’ Sexually Violent Predator Act narrows the class of persons eligible for confinement to those who find it difficult, if not impossible, to control their dangerousness.). It is at least ironic that propensity evidence can be part of the support for an indefinite civil commitment, but cannot be part of the support for an initial criminal conviction in a child sex crime prosecution.
“Of course, tire legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make K.S.A. 60-455 more workable in such cases, without doing unconstitutional violence to the rights of criminal defendants. It may be time for the legislature to examine the advisability of amendment to K.S.A. 60-455 or some other appropriate adjustment to the statutory scheme.” Prine I, 287 Kan. at 737.
The legislature promptly accepted the Kansas Supreme Courts invitation and amended K.S.A. 60-455, which now states, in part:
“(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 2015 Supp. 21-6104, 21-6325; 21-6326 or 21-6419 through 21-6422, and amendments thereto, evidence of the defendant’s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative." K.S.A. 2015 Supp. 60-455.
The Supreme Court examined the language of K.S.A. 60-455(d) in State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013) (Prine II). The State again argued Prime's prior sexual abuse of his daughter and half-sister were admissible to show intent, absence of mistake or accident, or plan. The Supreme Court again determined the evidence was inadmissible for those purposes. However, the district courts error was harmless' because the evidence was relevant to propensity and was admissible under K.S.A. 2009 Supp. 60-455(d). Trine II, 297 Kan. at 479-80. The Supreme Court did not address the constitutionality of K.S.A. 2009 Supp. 60-455(d) because neither party raised a constitutional challenge.
Boysaw now argues K.S.A. 2015 Supp. 60-455(d) violates traditional common law and Kansas' caselaw prohibition on the use of prior crimes evidence to prove a defendant's propensity to commit the current crime. Howeyer, Boysaw fails to recognize that prior to K.S.A. 60-455 s enactment in 1963, as previously discussed, Kansas recognized the admissibility of evidence of similar prior sexual acts to show a defendants lustful disposition.
Due Process Under K.S.A. 2015 Supp. 60-455(d)
The Kansas Supreme Court acknowledged that K.S.A. 2009 Supp. 60-455(d) was patterned after the Federal Rules of Evidence 413 and 414. Prine II, 297 Kan. at 476. Federal Rule of Evidence 413(a) provides: “Permitted Uses. In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.” Federal Rule of Evidence 414(a) provides: “Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.” Similarly, evidence admitted pursuant to K.S.A. 2015 Supp. 60-455(d) “may be considered for its bearing on any matter to which it is relevant and probative.”
Our research reveals at least four federal circuit courts have directly held Rule 413 or 414 do not violate an accused’s due process rights. See United States v. Julian, 427 F.3d 471, 486 (7th Cir. 2005), cert denied 546 U.S. 1220 (2006); United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001), cert denied 534 U.S. 1166 (2002); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir. 1998), cert denied 525 U.S. 1089 (1999); United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir.), cert denied 525 U.S. 887 (1998). Pursuant to Federal Rules of Evidence 413 and 414, nearly every circuit court admits prior similar sexual misconduct to show a defendants propensity to commit the crime charged. The constitutionality of Federal Rules 413 and 414 has not been addressed by the United States Supreme Court.
In Enjady, tire Tenth Circuit Court of Appeals addressed the constitutionality of Rule 413, and acknowledged:
“The due process arguments against the constitutionality of Rule 413 are that it prevents a fair trial, because of ‘settled usage’—that the ban against propensity evidence has been honored by the courts for such a long time that it ‘must be taken to be due process of law,’ Hurtado v. California, 110 U.S. 516, 528, 4 S. Ct. 111, 117, 28 L. Ed. 232 (1884); because it creates a presumption of guilt that undermines the requirement that the prosecution must prove guilt beyond a reasonable doubt, see Estelle, 502 U.S. at 78, 112 S. Ct. at 485 (O’Connor, J., concurring); and because if tendered to demonstrate the defendant’s criminal disposition it licenses the jury to punish the defendant for past acts, eroding the presumption of innocence that is fundamental in criminal trials. See Sheft, supra, at 77-82.
“That the practice is ancient does not mean it is embodied in tire Constitution. Many procedural practices—including evidentiaiy mies—that have long existed have been changed without being held unconstitutional. The enactment of the Federal Rulgs of Evidence and subsequent amendments are examples.” 134 F.3d at 1432.
The Enjady court held the admission of evidence pursuant to Federal Rule 413 was not an unconstitutional violation of the Due Process Clause of the 14th Amendment to the United States Constitution because of tire safeguards of Federal Rule of Evidence 403. 134 F.3d at 1433. Other federal circuits have followed the rationale in Enjady.
Federal Rule of Evidence 403 states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading tire jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Kansas has a statutory safeguard similar to Federal Rule 403:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” K.S.A. 60-445.
Though the language of K.S.A. 60-445 only identifies unfair and harmful surprise as a reason to exclude evidence, the Kansas Supreme Court has interpreted K.S.A. 60-445 as similar to Federal Rule 403. State v. Lee, 266 Kan. 804, 814, 977 P.2d 263 (1999) (“We find no distinction between Federal Rule 403 and K.S.A. 60-445 based on the absence from 60-445 of the phrase ‘unfair prejudice.’ Exclusion of evidence on the basis of undue prejudice has always been a prerogative of a common-law trial judge.”).
K.S.A. 2015 Supp. 60-455(d) permits the same evidence as Federal Rules of Evidence 413 and 414, and the evidence may be considered for any relevant matter. K.S.A. 2015 Supp. 60-455(d) is also subject to the same safeguard as Federal Rules 413 and 414. As such, the federal cases are highly persuasive. K.S.A. 2015 Supp. 60-455(d) does not violate a defendant’s due process rights because tire district court has discretion to exclude evidence of prior sexual offenses if the evidence is unfairly prejudicial.
Boysaw’s Argument
Boysaw submits decisions from Iowa and Missouri to support his claim the admission of propensity evidence under K.S.A. 2015 Supp. 60-455(d) is unconstitutional in Kansas. In 2010, Iowa considered the constitutionality of a similar statute:
“In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of tire defendants commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the juiy, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.” State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010) (quoting Iowa Code § 701.11[1]).
The Iowa court noted the general prohibition of propensity evidence was “firmly established in Iowa courts at common law.” Cox, 781 N.W.2d at 764. It also noted that while some jurisdictions developed exceptions for evidence of prior sexual abuse, Iowa has never admitted evidence of prior sexual offenses solely to prove the defendant’s propensity:
“Based on Iowa’s history and tire legal reasoning for prohibiting admission of propensity evidence out of fundamental conceptions of fairness, we hold the Iowa Constitution prohibits admission of prior bad acts evidence based solely on general propensity. Such evidence may, however, be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in rule 5.404(b) and developed through Iowa case law.” Cox, 781 N.W.2d at 768.
Boysaw’s rebanee on Cox is misplaced. Unlike Iowa, prior to 1963 when K.S.A. 60-455 was enacted, Kansas repeatedly allowed propensity evidence in sexual crimes cases. Further, the prohibition on propensity evidence to show a defendants lustful disposition started with the enactment of K.S.A. 60-455. See Taylor, 198 Kan. at 292. The Kansas Supreme Court did not overrule Stitz and Allen, or disapprove of the lustful disposition exception, for constitutional reasons; it merely reacted to the legislature’s enactment of a new statute, K.S.A. 60-455. See Taylor, 198 Kan. at 292.
The 2009 amendments to K.S.A. 60-455, now reflected in K.S.A. 2015 Supp. 60-455(d), did not undermine Kansas’ traditional protection afforded defendants by allowing evidence of prior sex offenses to be admitted to prove propensity. Instead, the legislature’s amendments accurately reflect Kansas’ common-law tradition, which included the use of a defendant’s prior sexual crimes to prove tire defendant’s lustful disposition as an exception to the general prohibition of using prior crimes to prove propensity. Since Kansas has a different common-law tradition than Iowa, Cox provides little support for Boysaw’s arguments and is not persuasive.
Boysaw also submits State v. Ellison, 239 S.W.3d 603 (Mo. 2007), from the Missouri Supreme Court. The Missouri Supreme Court invalidated a statutory provision allowing propensity evidence for sexual crimes against children when the victim is under 14 unless the prejudicial effect of the evidence outweighs its probative value. In Ellison, the Missouri Supreme Court noted:
“This Court has long maintained a general prohibition against the admission of evidence of prior crimes out of concern that ‘[e]vidence of uncharged crimes, when not properly related to the cause of trial, violates a defendant’s right to be tried for the offense for which he is indicted.’ [State v. Burns, 978 S.W.2d 759, 760 (Mo. 1998)] (citing State v. Holbert, 416 S.W.2d 129, 132 [Mo. 1967]).” Ellison, 239 S.W.3d at 606.
This prohibition is based on art. 1, sections 17 and 18(a) of the Missouri Constitution. Ellison, 239 S.W.3d at 606. Section 17 provides that no person shall be prosecuted criminally except by indictment or information. Mo. Const, art. 1, § 17. Section 18(a), which is similar to § 10 of the Kansas Constitution Bill of Rights, states:
“That in criminal prosecutions die accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county.” Mo. Const, art. 1, § 18(a).
Section 10 of the Kansas Constitution Bill of Rights provides:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial juiy of the county or district in which tire offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
In keeping with a long line of cases, the Missouri Supreme Court held the statute allowing propensity evidence for sexual crimes against children was unconstitutional because the Missouri Constitution prohibited the admission of previous criminal acts to show propensity. Ellison, 239 S.W.3d at 607.
Boysaw’s reliance on Ellison is also misplaced. Boysaw seems to argue this court should likewise interpret § 10 of the Kansas Constitution Bill of Rights as violating a defendant s right to “know the nature of the crime he is accused of.” Unlike the Missouri constitutional provision, § 10⅛ right for an accused “to demand the nature and cause of the accusation against him” only guarantees a sufficiently specific indictment to inform the accused of the charge he or she must defend against. See State v. Wright, 259 Kan. 117, 125, 911 P.2d 166 (1996) (quoting State v. Ashton, 175 Kan. 164, 174-75, 262 P.2d 123 [1953]).
Though § 18(a) of the Missouri Constitution contains language similar to § 10 of the Kansas Constitution Bill of Rights, the provisions’ interpretations are distinct. In Ellison, the Missouri Supreme Court invalidated a statute allowing the admission of propensity evidence because of Missouri’s longstanding legal tradition based on article 1, §§ 17 and 18(a) of the Missouri Constitution. In contrast, Kansas’ provision only guarantees a specific indictment and has never been inteipreted to prohibit the admission of propensity evidence. Ellison provides little support for Boysaw’s argument.
Neither Cox nor Ellison is persuasive. Iowa’s longstanding tradition of prohibiting evidence of prior sexual offenses solely to prove the defendant’s propensity to commit the charged crime is irrelevant since Kansas courts routinely admitted propensity evidence in sexual crimes cases until the legislature enacted K.S.A. 60-455 in 1963. Similarly, the Missouri Supreme Courts broader interpretation of its Constitution to include a ban on propensity evidence is irrelevant since our Supreme Court has narrowly interpreted § 10 of the Kansas Constitution Bill of Rights.
Prejudicial Effect Versus Probative Value
Boysaw argues the prejudicial effect of his 1987 Nebraska conviction “vastly outweighed its limited probative value.” Our Supreme Court and this court have long recognized that a trial court has discretion to exclude relevant evidence when the court finds its probative value is outweighed by its potential for producing undue prejudice. See Lee, 266 Kan. at 814. An appellate court reviews any such determination for an abuse of discretion. See State v. Lotorance, 298 Kan. 274, 291, 312 P.3d 328 (2013). 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. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
In Prine II, the Kansas Supreme Court noted federal cases interpreting Federal Rules 413, 414, and 415—upon which K.S.A. 60-455(d) was modeled—provided guidance and cited United States v. Benally, 500 F.3d 1085 (10th Cir. 2007), with approval. Prine II, 297 Kan. at 478. Subsequent cases indicate district courts must balance the probative value against the threat of undue prejudice. See State v. Remmert, 298 Kan. 621, 628, 316 P.3d 154 (2014), disapproved of on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015); State v. Spear, 297 Kan. 780, 789, 304 P.3d 1246 (2013).
In determining whether to admit evidence of prior acts, the Tenth Circuit Court of Appeals held the district court should consider:
“1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how likely it is such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the juiy from the central issues of the trial; and 3) how time consuming it will be to prove tire prior conduct.” Benally, 500 F.3d at 1090.
The Tenth Circuit also provided a list of factors a court may consider when analyzing the probative value of prior acts, including: “(1) the similarity of the prior acts and the charged acts, (2) the time lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the occurrence of intervening events, and (5) tire need for evidence beyond the defendant’s and alleged victim’s testimony.” Benally, 500 F.3d at 1090-91. Boysaw cites a similar list of factors from LeMay, 260 F.3d at 1027-28, which were analyzed by a panel of this court in State v. Young, No. 102,121, 2013 WL 6839328 (Kan. App. 2013) (unpublished opinion), rev. denied 300 Kan. 1108 (2014). Though the wording of the factors differ slightly, the factors are substantively the same.
Boysaw claims the 1987 conviction lacks probative value and argues the evidence’s inadmissibility, asserting:
• The ages of the victims are dissimilar;
• The prior conviction occurred 27 years ago;
• He has only one prior, similar conviction;
• He served 5 years in prison; and
• He began suffering health problems.
In contrast, the State responds the prior conviction is admissible since:
• The conviction in 1987 was a similar crime;
• The age of the girls was close—9 years old vs. 6 years old;
• The act of touching the two girls was nearly identical;
• The prior conviction is probative given Boysaw’s theory of defense;
• The State tailored the stipulation to Boysaw’s request; and
• The stipulation was limited to the basics.
Here, the district court carefully considered the facts of Boy-saw’s prior conviction along with the facts of this case and found:
• The prior crime was strikingly similar to the currently charged crime;
• The girl in the 1987 conviction was 9 years old when Boy-saw touched her—G.E.M. was 6 years old when Boysaw touched her;
• Boysaw was accused of removing G.E.M. s panties and touching her vagina with his hand in a rubbing motion without penetrating her;
• G.E.M.⅛ mother testified Boysaws pants were unfastened and he had to adjust his penis through his clothing to refasten them; and
• Boysaws 1987 conviction was for removing a girls panties, touching her vagina with his hand in a rubbing motion without penetrating her while exposing his penis, and touching himself.
Further, the record reflects the district court carefully considered the admissibility of the prior conviction given the time lapse between the prior offense and the charged offense, the number of the prior acts, tire occurrence of intervening events, and tire need for evidence beyond the defendants and alleged victims testimonies. The district court determined none of these factors prohibited the admission of the 1987 conviction. The district courts decision to include evidence of Boysaws 1987 Nebraska conviction was not arbitrary, fanciful, or unreasonable. Therefore, the district court did not abuse its discretion in finding evidence of the prior conviction was not unduly prejudicial, was probative, and was admissible.
Boysaw Is an Aggravated Habitual Sex Offender.
Boysaw claims the district court erred when it classified his 1987 Nebraska conviction as a sexually violent crime and sentenced him as an aggravated habitual sex offender. Whether a defendant qualifies as an aggravated habitual sex offender is a mixed question of law and fact. State v. Weber, 297 Kan. 805, 812, 304 P.3d 1262 (2013). As such, this court reviews the district courts factual findings for substantial competent evidence and the district courts legal conclusions de novo. 297 Kan. at 812.
Boysaw argues Neb. Rev. Stat. § 28-319 (2006) is not substantially similar to K.S.A. 2015 Supp. 21-6626(c)(2)(B) because first-degree sexual assault of a child in Nebraska was not implemented until 2006. The State correctly points out Boysaw was convicted of sexual assault of a child pursuant to Neb. Rev. Stat. § 28-320.01 (1984), and the PSI incorrectly identified the statute as Neb. Rev. Stat. § 28-319 (2006). Boysaws 1987 Nebraska conviction was for sexual assault of a child and was substantially similar to K.S.A. 2015 Supp. 21-6626(c)(2)(B).
In 1987, Neb. Rev. Stat. § 28-320.01 (1984) read: “A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older.” Neb. Rev. Stat. § 28-318(5) (1985) defined “sexual contact” as:
“[T]he intentional touching of the victims sexual or intimate parts or the intentional touching of the victim’s clothing covering the immediate area of the victim s sexual or intimate parts... . Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.”
At the time of Boysaws conviction, Kansas defined aggravated indecent liberties with a child as “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both” when the child is under 14 years old. K.S.A. 2015 Supp. 21-5506(b)(3)(A).
The Nebraska statute is substantially similar to K.S.A. 2015 Supp. 21-5506(b)(3)(A). Both statutes involve victims under the age of 14. Both statutes involve physical contact between the victim and offender and require the contact be intended to sexually arouse or satisfy either the victim, the offender, or both. Had Boy-saw’s 1987 Nebraska conviction occurred in Kansas, it would have been charged as aggravated indecent liberties with a child.
The aggravated habitual sex offender statute defines an aggravated habitual sex offender in K.S.A. 2015 Supp. 21-6626(c)(l) to mean:
“[A] person who, on and after July 1, 2006: (A) Has been convicted in this state of a sexually violent crime, as described in subsection (c)(2)(A) through (c)(2)(J) or (c)(2)(L); and (B) prior to the conviction of the felony under subparagraph (A), has been convicted of two or more sexually violent crimes.”
Additionally, K.S.A. 2015 Supp. 21-6626(c)(2)(K) defines other prior sexual convictions as “any federal or other state conviction for a felony offense that under the laws of this state would be a sexually violent crime as defined in this section.” Aggravated indecent liberties with a child is a sexually violent crime. K.S.A. 2015 Supp. 21-6626(c)(2)(B).
The district court correctly found Boysaw was an aggravated habitual sex offender. The district court found Boysaw had two prior convictions for sexually violent crimes—attempted indecent liberties with a child in Kansas in 1979 and his 1987 Nebraska conviction. Pursuant to K.S.A. 2015 Supp. 21-6626(c)(2)(L), attempted indecent liberties with a child is a sexually violent crime. Likewise, under K.S.A. 2015 Supp. 21-6626(c)(2)(K), Boysaws 1987 Nebraska conviction was a sexually violent crime. The district court did not err when it found Boysaw was an aggravated habitual sex offender and sentenced him pursuant to that finding.
The Aggravated Habitual Sex Offender Statute Is Constitutional.
Boysaw also argues the aggravated habitual sex offender statute, K.S.A. 2015 Supp. 21-6626, is unconstitutional because it increases a statutory minimum sentence without requiring the facts be proven to a jury as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Boysaw acknowledges the Kansas Supreme Court has consistently rejected this argument. See Weber, 297 Kan. at 817-18; State v. Trautloff, 289 Kan. 793, 803-04, 217 P.3d 15 (2009). In Weber and Trautloff, the defendants were sentenced to fife in prison without the possibility of parole as aggravated habitual sex offenders. The Kansas Supreme Court rejected their arguments that the sentencing statute was unconstitutional, citing, among others, State v. Conley, 287 Kan. 696, 700, 197 P.3d 837 (2008). In Conley, the Kansas Supreme Court held only facts increasing a sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt under Ap-prendi. 287 Kan. at 700.
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases tire penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Inexplicably, neither Boysaw nor the State cite to Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). Alleyne extended Apprendi to apply where facts increased the mandatory minimum sentence as well. Alleyne, 133 S. Ct. at 2155. Based on the United States Supreme Court’s holding in Alleyne, it appears Weber, Trautloff, and Conley are no longer controlling law.
Under Apprendi, prior convictions need not be submitted to a jury. 530 U.S. at 490; State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). The Alleyne court expressly declined to revisit this exception; it remains controlling law. 133 S. Ct. at 2160 n.1. Pursuant to K.S.A. 2015 Supp. 21-6626, a defendant “shall be sentenced to imprisonment for hfe without the possibility of parole” if the defendant has two or more prior convictions for sexually violent crimes. Only a defendant’s prior convictions are considered.
Since K.S.A. 2015 Supp. 21-6626 enhances a defendants sentence based on the defendants prior convictions, the district court did not violate Boysaws constitutional rights when it imposed a life sentence without parole pursuant to K.S.A. 2015 Supp. 21-6626 without requiring the facts supporting the sentence be proved to a juiy beyond a reasonable doubt.
No Apprendi Violation
Boysaw also argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it used his prior convictions to enhance his sentence without proving those convictions to a jury beyond a reasonable doubt, contrary to the United States Supreme Court’s guidance in Apprendi, 530 U.S. at 490. Boysaw recognizes the Kansas Supreme Court rejected this argument in Ivory, 273 Kan. at 45-48, but includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011). The district court properly used Boysaws criminal history to establish his sentence.
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The opinion of the court was delivered by
Luckert, J.:
This appeal follows a district court’s denial of a defendant’s motions for new trial based on postconviction DNA testing that was allowed under K.S.A. 21-2512. The postconviction DNA testing produced some results that were favorable to the defendant, some results that confirmed evidence at trial, and some results that were inconclusive because the small amount and the degradation of the DNA prevented DNA matching. Weighing the mixed results of this evidence, the district court concluded there was not a reasonable probability that the new evidence would have changed the outcome of the trial.
We have previously held that an abuse of discretion standard of review applies when the issue on appeal is whether a district court erred in ruling on a motion for new trial based on favorable post-conviction DNA test results. Applying this standard to this case, we conclude reasonable people could agree with the district court that the postconviction DNA test evidence was not so material as to make it reasonably probable there would be a different outcome if there were a new trial. Hence, we affirm.
Factual and Procedural Background
This is the third appeal considered by this court in this case. In the first appeal, this court affirmed Kenneth E. Haddock’s conviction and sentence for the premeditated first-degree murder of his wife, Barbara Haddock. State v. Haddock, 257 Kan. 964, 897 P.2d 152 (1995) (Haddock I), overruled on other grounds by State v. James, 276 Kan. 737, 750-51, 79 P.3d 169 (2003) (altering appellate standard of review on suppression issue of whether defendant was in custody when interrogated by law enforcement officers). After that appeal, Haddock filed several motions, including two motions for new trial based on postconviction DNA testing. The district court denied Haddock’s motions, and Haddock pursued a second appeal that culminated in this court’s decision in State v. Haddock, 282 Kan. 475, 146 P.3d 187 (2006) (Haddock II).
In Haddock II, this court remanded the case to the district court after determining the district court erred in its treatment of Haddock’s two motions requesting a new trial based on postconviction DNA test results. Haddock II, 282 Kan. at 525. On remand, further DNA testing occurred, and the district court heard evidence regarding the postconviction DNA test results. The district court then made the ruling that is the subject of this appeal, again denying Haddock’s motions for new trial.
Resolving this appeal requires us to compare the evidence presented to the jury with the evidence revealed by the postconviction DNA test results. Consequently, a detailed discussion of the facts is necessary. Additional facts are included in the decisions in Haddock I and Haddock II.
Evidence at Trial
In November 1992, Barbara was found dead in her garage, buried under a pile of firewood. Police responding to a 911 call quickly suspected foul play because there was a pool of blood some distance from the wood pile and because Barbara’s injuries were inconsistent with crushing injuries from falling wood. An autopsy revealed bruises and abrasions on Barbara’s hands and arms that were consistent with defensive wounds, bruises and lacerations on her face, and other trauma to her head consistent with 6 to 12 blows with a blunt object.
Investigators concluded that the crime scene had been orchestrated. Blood spatters and smears suggested that Barbara had been moved from one location in the garage to the wood pile. Additionally, her blood was found on her car, which police found in the driveway. The location and nature of the blood spatter on the car, when considered together with other blood spatter evidence inside the garage, suggested that Barbara had been beaten while the car was in foe garage. This led to the conclusion the car had been moved after the murder. Detectives suspected foe murder weapon was a fireplace poker that had been wiped clean and was much cleaner that foe other fireplace tools they found in foe Haddocks’ home.
On foe evening of foe murder, detectives questioned Haddock, at which time they observed and photographed two scratches on Haddock’s right wrist that appeared fresh. Detectives also seized foe shoes Haddock was wearing, in which they found wood chips. Haddock would eventually explain foe chips were there because he had built a fire for Barbara in foe early afternoon while he was at home for lunch. Detectives were suspicious of Haddock’s response to foe news of his wife’s death, in large part because of his insistence that her death resulted from foe falling wood. Haddock maintained his innocence, but he was arrested 5 days after Barbara’s death.
The State built its case on circumstantial evidence, largely related to the orchestrated crime scene. Evidence was presented that foe wood pile had fallen a few weeks before foe murder and that Haddock and his family members were the only ones who likely knew of that incident. There was also evidence of marital discord and stress. Haddock had been found guilty in federal court of bank fraud and other offenses and had been sentenced to prison. After an appeal and remand, Haddock was facing resentencing but remained on bond at the time of tire murder. Testimony from a friend of Barbara’s established that Barbara would become very upset and emotional when discussing the future, she was “becoming very frustrated” with the expense of defending the bank fraud case, she was concerned they were going to have to use their son’s college fund, and “she was getting angry with Ken that it kept going on and on and on.”
In addition, DNA evidence was presented that linked blood found on Haddock’s clothing and shoes to Barbara. The clothing— a shirt and pants—were found by police on the floor of Haddock’s home near the garage, and the shoes were those seized by detectives at their interview of Haddock. Haddock explained that he had placed the shirt and pants near the laundiy room before he left the house because Barbara was going to mend the items.
Both pieces of clothing and the shoes had small amounts of blood on them. Significantly, no other blood evidence was found in the house. Haddock maintained the blood was transferred to the clothing when his daughters, who had discovered their mother in the garage, and his neighbors, who the daughters had summoned to provide Barbara first aid, walked by the clothes. He thought the blood had been transferred to his shoes when he hugged his daughters. The State disputed this theory with evidence that there were no other blood drippings or smears in the house, with a description of Barbara’s blood as being coagulated by the time first aid was attempted, and with blood spatter evidence that led experts to opine that the blood pattern on the clothing and shoes was consistent with what could be expected if the clothing had been worn at the time of the beating, not if the clothing had been contaminated by dripping or smeared blood.
An expert testified that blood spatters on the left shoe were on the inside portion of the shoe, consistent with where most of the blood was found on Haddock’s pants. Likewise, blood was found on the outside area of the right shoe, again consistent with where a lot of the blood on the right pant leg was found. The expert drew the conclusion from this evidence that the shoes and pants were worn at the same time when the spatter pattern was deposited. A second expert concurred in these opinions.
Other DNA evidence presented at trial linked Haddock to hair found clutched in Barbara’s right hand. Detectives found two hairs, one of which showed DNA markings consistent with Haddock. The other produced no DNA markings.
Haddock presented an alibi defense that implied an unknown party committed the murder. Haddock attempted to give credence to the possibility of a random murder—a so-called phantom murderer—through evidence that the day of the murder was a gang initiation day. The district court denied the admission of the gang evidence.
Haddock admitted to having been home with Barbara around lunch time and in the early afternoon. As to the alibi, Haddock pointed to Barbara’s watch, which had been damaged in the beating and had stopped at 3:16 p.m., and a receipt imprinted with a 3:18 p.m. time stamp from a Wendy’s restaurant located more than 10 minutes away from the Haddock home. Haddock testified he left home at approximately 2 p.m., went to the Olathe Public Library to do research for his federal case, and then to Wendy’s, where he bought food. He then drove to look at some property for a possible investment purchase by his company and finally back to the office, where he was immediately told by his secretary to go home.
The State rebutted the alibi with evidence that the hands of tire watch could have been manipulated even though the watch was broken. In addition, the State cast doubt on the watch accurately reflecting the time of death by pointing to evidence the Haddocks’ daughter returned home within minutes of the time the watch allegedly stopped but saw nothing alarming, to evidence a neighbor heard a noise around 2 p.m. that she later compared to the sound she heard when the police moved the wood, and to evidence that Barbara had not answered the phone when called at about 3 p.m. Finally, the State presented the testimony of two front desk clerks at the Olathe Public Libraiy who worked the afternoon of Barbara’s murder. They testified it was a slow afternoon and they did not remember seeing Haddock or anyone resembling Haddock in the library. The State also refuted the implication of a random murder by establishing that nothing was missing from the house or garage and the murderer had orchestrated the crime scene, including moving, but not stealing, tire car.
The State argued the 6 to 12 blows to the back of Barbara’s head, some of them delivered after she was lying on the floor, according to blood spatter patterns, provided evidence of premeditation. The State asked the jury to infer that Haddock went from “acting on impulse” to realizing that he had gone too far to turn back and thus knew “exactly what he was doing” in administering the multiple, lethal blows. The State argued that Haddock then moved the car and Barbara, moved the hands on the watch, and pushed the wood on top of Barbara in an attempt to make the death appear accidental, hoping there would not be' a rigorous investigation.
The jury convicted Haddock of premeditated first-degree murder, and this court affirmed that conviction. Haddock I, 257 Kan. at 988.
Soon after the first appeal was resolved, Haddock began filing a litany of postconviction motions. See Haddock II, 282 Kan. at 483-91 (detailing the postconviction litigation). Two of these motions are at issue in this appeal; both are motions for new trial based on postconviction DNA testing under K.S.A. 21-2512.
Proceedings Leading to Haddock II: The First Motion for DNA Testing
Haddock filed his first motion referencing K.S.A. 21-2512 just a few weeks after that statute became effective on July 1, 2001. In the motion, Haddock requested DNA testing of three pieces of evidence: two hairs found in Barbara’s hand, a pair of eyeglasses found in the garage, and some fingernail scrapings taken from Barbara’s hands. These items received vaiying levels of attention at trial.
Of the three items, the hair was most frequently mentioned; Haddock asserts the word “hair” occurs 111 times in the trial transcript.
The hair was first mentioned in the State’s opening statement when the State described where the two hairs were found, explained that DNA testing had been performed on the hair, and argued:
“They appeared to be body hairs, hairs that you would get off arm or leg or those sort of things and there was enough root on one of those hairs to compare it to tire DNA type that the defendant has, and the expert testimony will be that the DNA type from that hair, from that body hair, matches up with the DNA type of the defendant that’s on trial in this case.”
Then, during the State’s case, a forensic examiner provided evidence about the location of the two hairs found in Barbara’s right hand. One hair was found in the palm of her hand, and the second hair was closed tightly between the right middle finger and the right ring finger. A photograph of Barbara’s hand depicting one of the hairs was admitted at trial.
Next, some evidence was presented regarding DNA testing of the hair through the testimony of Robert C. Giles, Ph.D., scientific and laboratory director for GeneScreen laboratory in Dallas, Texas. The hair was tested by DQ Alpha testing. The jury was generally told there was more than one method of testing DNA and that DQ Alpha testing is a relatively inexact form that can sometimes eliminate DNA contributors but generally cannot narrow tire perpetrator down as precisely as other testing methods. See District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 57, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009) (explaining DQ Alpha testing). In Haddock II, this court discussed the GeneScreen results regarding the hair by stating:
“The 1993 GeneScreen report identified the existence of three DQ Alpha types (also referred to as alleles or genotypes) in the hair of the right hand of the victim (faint 1.1,1.2, 4). However, the report also provided in relevant part:
“ ‘In addition, specimen FOR1519-3639 (hair) typed as a 1.1/4. Due to the presence of the 1.1/4 DQ alpha type and the nature of the testing procedure, it is not possible to determine if a 1.2 type may also be present. The 1.1/4 type matches specimen FOR1519-3351 (blood-K. Haddock) which also typed as 1.1/4.
“ ‘The frequency of the DQ 1.1/4 alpha type in three North American populations is as follows:
‘Blacks 9.1%
‘Caucasians 7.4%
‘Hispanics 5.9%.’ ” Haddock II, 282 Kan. at 484.
Giles testified that Haddock’s DQ Alpha profile was 1.1/4; Barbara’s was 1.2. Giles testified that the typing they achieved on the hair was 1.1/4, which was “consistent with the blood of Mr. Haddock and is inconsistent with the blood of Mrs. Haddock.” On cross-examination, defense counsel focused on the opinion in the report indicating it was not possible to determine if a 1.2 DQ Alpha type, such as Barbara’s, was also present in the hair sample. Defense counsel also asked Giles about the percentages of the various population groups that could not be excluded as the hair donor.
The hair was again mentioned during the State’s cross-examination of Haddock, when the following exchange regarding the hair occurred:
“Q. [State]: Would you agree that whoever this murderer was, was in all likelihood somebody with hair that matches your DNA?
“A. [Haddock]: I have no knowledge of that.
“Q. [State]: You do know, though, that a hair matching your DNA was found clinched between two fingers of Barbara’s right hand; isn’t that correct?
“A. [Haddock]: It also was not.
“[Defense Counsel]: Object as argumentative. That misstates the evidence in tire case on cross-examination.
“[The Court]: Court will sustain the objection.”
Finally, the hair was briefly mentioned during defense counsel’s closing argument when counsel stated:
“DNA hair is interesting. The DNA hair, we know the procedure that was used, the one in twenty method, not the more reliable procedure, but we know that of the procedure that was used, the exact quote from Doctor Giles was, ‘It’s not possible to determine if a one point two type may be present,’ and we know Barb had DQ Alpha, one point one and one point two. ... Is that so uncommon to have body hair in your own hand, and yet they say beyond a reasonable doubt they’ve shown that it’s Ken’s body hair, and there’s no explanation that it’s Ken’s or Barb’s. State hasn’t shown beyond a reasonable doubt that it’s Ken’s hair.”
The other two items of evidence—the scrapings of material beneath Barbara’s fingernails and the eyeglasses—were not directly mentioned during the presentation of evidence at trial. The evidence admitted at trial of the two scratches on Haddock’s arm make the fingernail scrapings relevant. The detective who interviewed Haddock on the night of the incident testified he observed red, fresh scratches. The detective further testified there were still flaps of skin at the edge of the scratches. The scratches were connected to the lack of DNA evidence from Barbara’s fingernails by defense counsel during closing argument when he asked the jury, “Where’s the evidence of the fingernail scrapings with respect to that, if it’s consistent with their theory?”
The eyeglasses were not significantly mentioned during the case’s proceedings until a postconviction hearing. At that time, Haddock’s son, Steve, testified he saw a pair of eyeglasses listed in some police documents that itemized objects found in the garage. Steve maintained these were not Barbara’s glasses because her glasses were accounted for in the hoúse and Barbara would only wear her glasses on occasion when she was reading or while driving at night. Steve admitted that his mother may have had other pairs of glasses, but he maintained that she only wore one pair on a consistent basis.
The parties jointly agreed to allow DNA testing of the hair, eyeglasses, and fingernail scrapings and agreed that the testing would be done by Dr. Brian Wraxall, Chief Forensic Serologist of the Serological Research Institute of Richmond, California.
The Next Proceeding Leading to Haddock II: Haddock’s Motion to Dismiss
On April 10,2002, Haddock filed a “Motion to Dismiss,” arguing the DNA testing conducted by Wraxall showed that the hair in Barbara’s hand came from a female and was inconsistent with Barbara’s DNA. Haddock also argued that a reanalysis of the DNA testing admitted at trial revealed that the blood found on Haddock’s shoes was consistent with Haddock’s blood rather than that of Barbara.
The district court held an evidentiary hearing on Haddock’s motion on August 7, 2002. The Haddock II court described Wraxall’s testimony at this hearing, stating:
“Dr. Wraxall testified that the hair had been subjected to STR analysis, which was much more discriminatory than the HLADQ alpha system initially reported by GeneScreen; STR analysis determined that the hair was from a female that was not consistent with die victim. The hair also had a fair amount of cellular debris which was consistent with the hair being pulled out of the head. Dr. Wraxall concluded that the DNA of the fingernail scrapings was that of the victim and there was no indication of any other source of die DNA. The DNA on the eyeglasses was also consistent wifii that of the victim; however, there was extraneous DNA on the glasses, possibly from a male source, but not consistent widi Haddock.” Haddock 11, 282 Kan. at 487.
The district court did not allow Haddock to elicit testimony regarding Wraxall’s analysis of the blood on the shoes because the parties had not agreed to retest the shoes. At the conclusion of the hearing, the district court found overwhelming evidence of Haddock’s guilt and concluded Haddock had not “met his burden of showing there is a substantial question of innocence in this case.” The court denied Haddock’s motion.
The Final Motion Leading to Haddock II: The Second Motion for DNA Testing
On August 19, 2002, Haddock filed a “Motion for DNA Testing of Shoes, Pants, and Shirt.” The district court granted Haddock’s request for additional testing, and on March 21, 2003, Laboratory Corporation of America (Lab Corp.) filed its report. The Lab Corp. report found that presumptive chemical testing of the cuff area of the shirt failed to reveal the presence of blood, an attempt to develop a DNA profile from the cuff area of the shirt and the extracted DNA from the shoes failed to yield results due to insufficient quantities of DNA, and the DNA profile obtained from the DNA extract from the pants was consistent with a female source.
The State then suggested that Lab Corp. perform an additional process where the remaining extract from the shoes could be concentrated, which would enhance the chances of obtaining a DNA profile. This process was likely to require the complete consumption of the remaining shoe extract. Haddock did not agree to further testing.
District Court’s Ruling Leading to Appeal in Haddock II
On October 24, 2004, the district court issued an order denying Haddock’s second motion for DNA testing. The court found that Haddock’s refusal to agree to further testing by Lab Corp. resulted in there being no substantive issues regarding tire most recent DNA testing before the court. The court further found that all other motions had previously been ruled upon.
Haddock timely appealed. The case was transferred from the Court of Appeals to this court via this court’s own motion pursuant to K.S.A. 20-3018(c).
On November 9, 2006, this court reversed' the district court’s orders regarding both of Haddock’s motions for new trial based on DNA testing under K.S.A. 21-2512 and remanded the case to the district court for further proceedings. State v. Haddock, 282 Kan. 475, 525, 146 P.3d 187 (2006) (Haddock II). Regarding the post-conviction testing of the hair, fingernail scrapings, and eyeglasses, the Haddock II court held DNA evidence did not have to be conclusively exonerating in order to be considered “favorable” to a defendant. See-K.S.A. 21-2512(f). Instead, the Haddock II court concluded the results of the hair, fingernail, and eyeglasses testing were “favorable in part” because they established a “favorable inference that someone other than Haddock could have committed the murder.” Haddock II, 282 Kan. at 501-02.
The Haddock II court further concluded the district court never made a finding regarding whether the evidence at issue in Haddock’s second motion for DNA testing—the shoes, shirt, and pants—was favorable or unfavorable. Rather, the district court found that as a result of Haddock’s refusal to submit the clothes for consumption testing, no substantive issues regarding this evidence were before it. The Haddock II court concluded the district court’s resolution of the second motion was also erroneous. The Haddock II court held:
“On remand with reference to the defendant’s second motion for DNA testing, the district court must enter a final order concerning the effect of the Lab Corp. results on the shoes, shirt, and slacks. As the record now stands, the evidence regarding the slacks is unfavorable to Haddock because the evidence at trial established the blood on the slacks belonged to the victim. At the same time, when evidence of additional testing on the shoes and shirt are added to the mix, the court will have to malee a determination as to whether the mix is favorable, unfavorable, or inconclusive.
“In many respects, the end result may depend upon Haddock. If Haddock chooses to proceed with further DNA testing on the shoes and shirt, then the courts would be in a position to evaluate whether the results of such tests are favorable, unfavorable, or inconclusive. If the results are favorable, then the district court must consider the results at the hearing with the favorable results under the first motion and enter any order consistent with the interests of justice as set forth in K.S.A. 2005 Supp. 21-2512(f)(2) and (3). However, if Haddock chooses not to go forward with further DNA testing on the shoes and shirt, the court must determine on the basis of the evidence before it whether such results are favorable, unfavorable, or inconclusive and apply the appropriate provisions of K.S.A. 2005 Supp. 21-2512(f)(2) or (3).” Haddock II, 282 Kan. at 503.
Proceedings on Remand
On May 30, 2007, the district court held a hearing pursuant to K.S.A. 21-2512 where the parties agreed that consumption DNA testing could be performed by the KBI on the shoes and shirt. Eventually, the parties agreed the additional DNA testing should be performed by Wraxall.
On July 14, 2008, the district court held a hearing at which the court considered an April 30, 2008, report from Wraxall. Wraxall testified at the hearing regarding the testing he conducted on an extract from the shoes and four different cuttings from the shirt.
Wraxall was able to use a new process he had been using for 2 to 3 years that allowed him to remove the inhibitor from the shoe sample. The shoe sample itself could not be tied to a specific point on a shoe, and it was not known if several samples had been combined into the single, remaining sample. The new process, called STR testing, allowed Wraxall to obtain DNA results from the shoe sample where Lab Corp.’s testing had not been able to yield any results. Test results showed there was a mixture of DNA in tire sample and some form of degradation. In Wraxall’s opinion, the primary donor of the DNA was Barbara. Wraxall could not completely identify who the minor donor of the DNA was, but he testified it was consistent with Haddock. Wraxall also testified that he did not find any “alleles at any of the loci” that would suggest any type of third-party contribution.
Wraxall also explained why his opinion was contrary to his prior report that had led to Haddock’s second motion. In preparing that report, Wraxall had examined the GeneScreen typing strips and then opined the DNA was inconsistent with Barbara’s. Wraxall indicated that if it was assumed there was only one donor of the DNA in the shoe sample and the typing strip from GeneScreen did not indicate a secondary donor, the profile from the blood, an HLA DQ Alpha “ ‘1.1,4,’ ” was Haddock’s profile. Wraxall testified at the July 2008 hearing that GeneScreen “simply missed identifying one of the dots. Particularly the 4 dot.” Based on the correct identification of this typing strip, Wraxall testified that the typing strip indicated Haddock’s DQ Alpha type and not Barbara’s type.
Subsequent testing, however, led Wraxall to conclude that GeneScreen’s results were “right for the wrong reason.” Gene-Screen’s ultimate conclusion was correct in that Barbara was the primary donor of the DNA contained in the shoe sample. Wraxall concluded that based on his April 2008 testing of the DNA in the shoe sample, there was a 1 in 65 billion chance that the major donor was someone other than Barbara. Wraxall testified, “[I]f the profile that you determine is greater than ten times the population of die earth, my view is that, that’s that person.” Thus, it was Wraxall’s opinion that no one other than Barbara was the major donor of the shoe sample. Nevertheless, Wraxall testified on cross-examination that he did not conclusively know the kind of body fluid—blood, saliva, or some other form—contained in the DNA from the shoe sample because only a presumptive blood test had been performed.
Wraxall also testified regarding testing he conducted on cuttings from the shirt. Wraxall testified he was unable to draw any conclusions regarding some spots, some of which were as small as a pinhead and contained only trace amounts of DNA. Other cuttings gave an incomplete profile and appeared to be a DNA mixture; Wraxall stated that Barbara could not be excluded as the major donor of the DNA and that there were trace amounts of DNA from someone other than Barbara or Haddock. These tests basically confirm, or at least do not contradict, evidence at trial.
Wraxall’s testing produced new evidence, however, from a cutting that was taken from the side of the left sleeve, above the cuff (SERI item 19). There were three circled areas labeled 4, 5, and 6; these areas were described as “faint,” and Wraxall noted that area “4 you could see, but 5 and 6 weren’t real clear.” Probably because of that, area 4 had already been cut from the shirt but areas “5 and 6 were not touched. And there is just very, very faint staining there.” The cuttings from areas 3 to 6 revealed incomplete DNA profiles and mixtures. Wraxall testified Barbara could not be excluded as the major donor and Haddock could not be excluded as a minor donor. Even though the DNA was consistent with Barbara’s DNA, as we will discuss in more detail, Haddock would argue the test was favorable because of the location of these samples, which was above the cuff.
As indicated, Wraxall testified there were trace amounts of DNA present in some cuttings from the shirt that came from neither Barbara nor Haddock. Wraxall’s report concluded: “Trace amounts of DNA on soiled clothing can originate from the wearer, be present on the clothing before it is examined or be transferred from any person handling the clothing prior to examination.”
On cross-examination, Wraxall testified that he conducted an orthotolidine presumptive test for blood on the shirt and that all six stains tested positive for the presumptive presence of blood. Based on the results of the presumptive test and the finding of human DNA, Wraxall concluded there was blood on the shirt. Wraxall admitted that presumptive testing can yield false positives. Wraxall also stated that at trial there was testimony about a phen-olthalein test, a presumptive blood test that is weaker than the orthotolidine test, on certain items; Wraxall stated that if, based on the phenolthalein testing, testimony was provided at trial that the test revealed that the substance “was blood,” that testimony would be incorrect as it was only a presumptive test. Wraxall testified, “[I]t doesn’t say it wasn’t blood. But you can’t say, conclusively, that it was blood, based on that presumptive test.” Nevertheless, when explaining the testing process, he indicated:
“[A.]... If I am finding human DNA, and I get a presumptive test, I put these two things together. But it is, on its own; it is not without any confirmation, it is just a presumptive test.
“Q. So what you have is, you did a presumptive test to determine it was blood, and then, based on your presumptive test, for blood, called phenolthaline [sic], finding of human DNA, you confirm—or that’s how you made—
“A. That there is blood there, yes.”
Alan Mattox, a forensic scientist with the Biology Section of the KBI, also testified at the hearing. He stated that he tested areas 1 to 4 of the shirt and all tested presumptive positive for blood. Mat-tox did not test areas 5 and 6 because they were very consistent in size and color with area 4, which tested presumptively positive for blood.
On October 8, 2008, the district court held one last hearing on Haddock’s motions where, after hearing oral arguments from both sides, the court noted that the case was back before the district court on remand from the Kansas Supreme Court with a request for the court “to enter additional findings.” The district judge ruled:
“This case, and I agree with [defense counsel], is a circumstantial case, certainly is. One of the major circumstances of the case was how the crime scene was orchestrated. It was clearly orchestrated to try to fool the police in some manner.
“At the first trial, we heard evidence concerning the hair and the eyeglasses and tire fingernails. This occurred in a garage. Of course, not the cleanest place you could expect, but it occurred in a garage where the possibility of contamination existed. Analysis of those items did not exonerate . . . Mr. Haddock, and [defense counsel] agreed that exoneration be proved [sic] here. And I think the Supreme Court. . . considers it to be favorable facts from those items.
“The major overwhelming piece of evidence in this case was the woodpile. A very short list of people who knew anything about a fallen woodpile and that a third-party attacker could come up, use that as an excuse to come in, murder this woman brutally, and cover everything up, that is a powerful circumstance.
“We then had tire results presented [of further testing of the shoes and shirt], and those residís were not favorable to Mr. Haddock. And the Court now has some understanding of why it was so difficult to get those results from his expert. They were not favorable. They clearly were inculpatory.
“I have to look and see whether this new evidence, this new DNA evidence would in any way impeach the verdict; is it material enough in that there would be a different outcome possible. I say no. This evidence I think reinforces the jury’s verdict; not the other way around.
“It is my belief, Mr. Haddock, that you killed your wife. If I had the slightest doubt to the contrary, I would grant you a new trial, but this evidence here is very persuasive, very overwhelming, and there is no reasonable probability I think that the outcome of the trial would be any different if another jury were selected to hear this case again. There are just too many facts here that can’t be overlooked.
“But as far as I am concerned, the new DNA testing is unfavorable to you in many respects.
“I think the findings of the Court are amply set forth in the State’s supplemental brief. I don’t think those were disputed. The effect of those I think is that the Court’s conclusions are those set forth in the State’s brief.” (Emphasis added.)
The court entered a short written order that stated, in part, that the “court concurs with the statement of facts and conclusions of law as set forth in both of the State’s motions. The court rules from the bench, and denies Petitioner relief.”
Haddock timely appeals from this ruling. This court has jurisdiction under K.S.A. 20-3018(c).
Analysis
Haddock contends he is entitled to a new trial based on favorable results of DNA testing performed under K.S.A. 21-2512. To analyze these arguments, we must first examine K.S.A. 21-2512. We will then discuss Haddock’s arguments that (1) the district court failed to follow the mandate of this court’s remand order in Haddock II and (2) tire district court erred in refusing to grant a new trial in light of die postconviction DNA testing.
KS.A. 21-2512(j)
Haddock’s motions and this appeal are governed by K.S.A. 21-2512(f). Consequently, resolution of the issues on appeal requires us to interpret this statute. Questions of statutory interpretation are subject to unlimited review. Goldsmith v. State, 292 Kan. 398, 400, 255 P.3d 14 (2011). We reiterated the well-established rules of statutory interpretation in Goldsmith, another case interpreting K.S.A. 21-2512, where we stated:
“The ‘fundamental rale governing the interpretation of statutes “is that the intent of tire legislature governs if that intent can be ascertained.” ’ [Citations omitted.] ‘The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ [Citation omitted.] When the statute’s language is plain and unambiguous, the court is bound to apply ibe legislature’s intent, and there is no need for this court to resort to any other rules of statutory construction. [Citations omitted.] Only when the statute is ambiguous on its face, may tire court look at the historical background of [the] statute’s enactment, the circumstances surrounding its passage, the statute’s purposes, and its effect. [Citation omitted.]” Goldsmith, 292 Kan. at 400.
K.S.A. 21-2512(f) addresses the procedures to be followed in three possible scenarios where the results of postconviction DNA testing (1) are unfavorable to the petitioner; (2) are favorable to the petitioner; and (3) are inconclusive. The statute requires “specific and distinct procedures for each result.” Goldsmith, 292 Kan. at 402. The statute states:
“(f)(1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court:
(A) Shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess the petitioner for the cost of such testing.
“(2) If the results of DNA testing conducted under this section axe favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging tire petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
“(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).” (Emphasis added.) K.S.A. 21-2512(f).
Haddock argues the district court’s rulings on his motions are controlled by K.S.A. 21-2512(f)(2) because the results of the DNA testing are favorable. This means, he argues, the district court was required to hold a hearing and to grant him some form of affirmative relief. We reject this argument because a district court, while required to hold a hearing, is not required to grant affirmative relief if DNA testing is favorable to a petitioner. We reach this conclusion by examining the unambiguous language of K.S.A. 21-
Under the plain language of K.S.A. 21-2512(f)(2), if results are favorable, a district court is required to do two things. First, a district court must hold a hearing. See Goldsmith, 292 Kan. at 402 (“If the DNA testing result is favorable to the petitioner, the district court must order a hearing and enter an order that serves the interests of justice.”); State v. Denney, 283 Kan. 781, 789, 156 P.3d 1275 (2007) (plain language of statute requires hearing); Haddock II, 282 Kan. at 496 (provisions of K.S.A. 21-2512[f] contemplate full due process hearings). Second, a district court must enter an order after the hearing. But, in enacting K.S.A. 21-2512(f)(2), the Kansas Legislature did not require that this order grant the petitioner affirmative relief; even though the legislature listed only examples of affirmative relief, such as vacating the judgment or granting a new trial, the legislature indicated the list is not exclusive. This means, as we recognized in Haddock II, the “legislature has truly granted the district court wide discretion in the orders it may enter in its decision to serve the interests of justice... . [T]he grant is almost limitless consistent with the interests of justice and dependent upon the peculiar facts of the case being heard.” Haddock II, 282 Kan. at 497. In some situations, justice may be served by denying a motion for a new trial. As the United States Supreme Court has recognized:
“DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U.S. 518, 540-548[, 126 S. Ct. 2064, 165 L. Ed. 2d 1] (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009).
See Haddock II, 282 Kan. at 501 (“ ‘Negative or non-match results are those . . . where the results show that the victim was not the source of a certain sample . . . , but which ... do not necessarily exclude the defendant as the perpetrator.’ ”).
Implicitly recognizing that each K.S.A. 21-2512 petitioner is not entitled to a new trial, the Haddock II court imposed on petitioners seeking a new trial the burden of establishing that (1) postconviction DNA test results are favorable and (2) tire new DNA “ ‘evidence ... [is] of such materiality that a reasonable probability exists that it would result in a different outcome at trial. [Citation omitted.]’ ” Haddock II, 282 Kan. at 502 (quoting State v. Henry, 263 Kan. 118, 132-33, 947 P.2d 1020 [1997]). In imposing this second requirement, the Haddock II court stated:
“The standard for whether to grant a new trial under such circumstances is similar to our standard for granting a new trial based upon newly discovered evidence, except that no time limit exists for such a motion and a defendant need not establish that tire new evidence was newly discovered. In all other respects it is treated as a motion for new trial governed by the provisions of K.S.A. 22-3501: ‘The court on motion of a defendant may grant a new trial to him if required in the interest of justice.’ ” Haddock II, 282 Kan. at 499.
Citing this language, the State argues Haddock did not meet his burden of establishing a right to affirmative relief. The State first suggests the results of the testing on the items subject to Haddock’s second motion were unfavorable. Second, the State argues the district court correctly determined justice did not require further proceedings because of the minimal materiality of the favorable evidence related to the first motion when considered in the context of die entire case against Haddock.
The State does not suggest the DNA results were “inconclusive.” In fact, the only suggestion by either party in their briefs that any test results were “inconclusive” is limited to testing in which a sample was insufficient or so degraded that a testing result could not be obtained. For example, in addressing the testing of a stain on Haddock’s shirt, tire State indicates: “Only trace levels of DNA were found. Dr. Wraxall’s findings were therefore inconclusive.” In this sense, the State is referring to whether the test resulted in a scientifically reportable DNA result, as opposed to whether the result was either inculpatory or exculpatory. See, e.g., Commonwealth v. Mattel, 455 Mass. 840, 849 n.22, 853-54, 920 N.E.2d 845 (2010) (recognizing that in prior decisions the court had used the term “inconclusive” to mean that DNA evidence did not exclude an individual but clarifying that in the future the term “inconclusive” would be used only when a DNA sample does not contain enough DNA to draw a conclusion, DNA is degraded, or for other reasons a DNA test yields no results or the examiner draws no conclusion). We note a potential ambiguity as to which meaning of “inconclusive” the legislature intended when it drafted K.S.A. 21-2512(f)(3). We did not discuss the legislature’s intent in using the term “inconclusive” in Haddock II, instead simply accepting and adopting the context used by the district court, which was that the test results did not exclude Haddock. Haddock II, 282 Kan. at 500-01.
Nevertheless, in either context in which the word “inconclusive” could be used, there were inconclusive postconviction DNA test results in this case. Consequently, if the different results are segmented, we are presented with a situation where some of the post-conviction DNA evidence is favorable, some is unfavorable, and some is inconclusive. See State v. Haddock, 282 Kan. 475, 501, 503, 146 P.3d 187 (2006) (Haddock II) (“results of the hair, fingernail, and eyeglasses testing, while not conclusively establishing Haddock’s innocence, were favorable in part in that they supplied a favorable inference that someone other than Haddock could have committed the murder”; “the evidence regarding the slacks is unfavorable to Haddock because the evidence at trial established the blood on the slacks belonged to the victim”). This means that segments of the evidence could fit into each subparagraph of K.S.A. 21-2512(f). Or it could mean that the mix is inconclusive, with that word being used to mean that it does not completely exonerate or inculpate Haddock. Haddock II, 282 Kan. at 503 (“[W]hen evidence of additional testing on the shoes and shirt are added to the mix [with the unfavorable evidence regarding the pants], the court will have to make a determination as to whether the mix is favorable, unfavorable, or inconclusive.”).
If the district court had determined the mix—either the results of the testing of the clothing or the results of all the postconviction DNA tests—was inconclusive, K.S.A. 21-2512(f)(3) would require Haddock to prove “by a preponderance of the evidence that there is a substantial question of innocence.” No party asks us to apply this standard, and the district court did not use this standard. Consequently, we will not analyze this case by considering this standard or resolve the potential ambiguity in K.S.A. 21-2512(f)(3).
We are left to consider whether the results of the postconviction DNA tests under the first motion, under the second motion, or under a mix of the two are favorable or unfavorable. Haddock argues all results are favorable and suggests the district court failed to follow the mandate of Haddock II because it imposed an exoneration standard in determining if a new trial should be granted. According to Haddock, this means that on this basis alone we must reverse the district court.
Did the District Court Follow the Mandate of This Court’s Remand Order?
As Haddock argues, the Haddock II court explained that the “DNA results need not be completely exonerating in order to be considered favorable. [Citation omitted.]” Haddock II, 282 Kan. at 501. In reaching this conclusion, the court looked to State v. Buckman, 267 Neb. 505, 515-17, 675 N.W.2d 372 (2004). In Buckman, the Nebraska Supreme Court stated: “Once DNA testing is conducted, and results are obtained, the question is whether the evidence obtained exonerates or exculpates the movant.” Buckman, 267 Neb. at 515. Discussing Buckman, the Haddock II court fur-' ther explained that in some cases “DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact.” Haddock II, 282 Kan. at 495 (citing Buckman, 267 Neb. at 515-16). In a circumstance where the evidence obtained is merely exculpatoiy, rather than exonerating, a new trial is a “lesser but still effective remedy” as compared to an order vacating the petitioner’s conviction. Buckman, 267 Neb. at 517. This court recently reaffirmed that “[t]o be ‘favorable,’ the test result need not completely exonerate the petitioner.” Goldsmith, 292 Kan. at 402 (citing Haddock II, 282 Kan. at 501).
If test results need not be exonerating to be “favorable,” they likewise need not be exonerating to warrant a new trial. As the Buckman court recognized, there would be no need for a new trial if the DNA results were truly exonerating because the conviction would likely be vacated. Hence, exoneration is not the touchstone for granting a new trial.
Nonetheless, the district court in this case discussed an exoneration standard when orally denying Haddock’s motions for new trial, stating, “Analysis of those items [the hair, fingernail scrapings, and eyeglasses] did not exonerate . . . Mr. Haddock, and [defense counsel] agreed that exoneration be proved [sic] here. And I think the Supreme Court... considers it to be favorable facts from those items.” The parties reach different conclusions regarding the meaning of these statements.
As we examine the meaning of the district court’s conclusions, we begin by accepting that the court made a factually supported conclusion: It is true that the DNA testing of the hair, fingernail scrapings, and eyeglasses did not exonerate Haddock. Nevertheless, die statement that the evidence did not exonerate Haddock is troubling because, when read in isolation, it could be construed to require exoneration and because the next statement—Haddock and his defense counsel agreed exoneration had to be established— is incorrect. Defense counsel actually argued that “[t]he petitioner is not required to show that this evidence proves him innocent.”
Nevertheless, the State argues this one statement made by the district court regarding exoneration cannot be read in isolation and, when read in context, was simply a starting point for the district court’s analysis. We agree. Had the district court intended exoneration to be the ultimate test, the district court would have dismissed Haddock’s motions for new trial based on that finding alone because it would mean the test results were unfavorable. See K.S.A. 21-2512(f)(l) (if tire results of the DNA testing are unfavorable, district court “shall” dismiss the petition); Denney, 283 Kan. at 789 (K.S.A. 21-2512[f][l] clearly expresses legislative intent and requires no other action, “e.g., no hearing, no presentation of witnesses, [and] no cross-examination” if DNA testing is unfavorable.). But the district court did not dismiss the motions and instead made additional findings and conclusions after noting that this court had determined some of the test results were favorable. Thus, the district court acknowledged this court’s discussion in Haddock II, in which we repeatedly referred to the DNA results as favorable or partially favorable and in which we provided the following directions to the district court:
“As the favorable DNA results in this case are not conclusively exonerating, the district court must determine whether to order a new trial, or, in its discretion, enter some other order in the interests of justice.. .. [I]n considering whether to grant a new trial based on this favorable evidence, the district court must consider whether the ‘evidence . . . [is] of such materiality that a reasonable probability exists that it would result in a different outcome at trial.’ [Citations omitted.]” Haddock II, 282 Kan. at 502.
While the district court did not specifically cite the Haddock II court’s direction to apply this standard, immediately after noting that this court held the test results were favorable, the district court discussed the “overwhelming” evidence against Haddock. In this part of the ruling, the district court focused on the orchestrated crime scene and the improbability that a third party would have used the wood pile in an attempt to make Barbara’s death appear to be an accident. The court termed this as “powerful” circumstantial evidence against Haddock. The district court then discussed the blood evidence, which the court found to be unfavorable and inculpatory.
Next, the district court referred to the “new” evidence, a term which encompasses all of the postconviction DNA testing results. The district judge concluded, “I have to look and see whether this new evidence, this new DNA evidence would in any way impeach the verdict; is it material enough in that there would be a different outcome possible. I say no.” A few sentences later, the district judge held, “[Tjhere is no reasonable probability I think that the outcome of the trial would be any different if another jury were selected to hear this case again. There [are] just too many facts here that can’t be overlooked.”
In other words, while the district court’s reference to exoneration was ambiguous, overall the oral statements of the district judge indicate he did not ignore the mandate of Haddock II and in fact applied the test outlined for determining whether favorable post-conviction DNA test results mean a new trial should have been granted.
This conclusion is further reinforced by the district court’s incorporation of the State’s proposed findings of fact and conclusions of law into the order. Those proposed conclusions included statements that the postconviction DNA testing arising out of the first motion—the testing of the hair, eyeglasses, and fingernail scrapings—did “help [Haddock] to a small degree,” but the overwhelm ing evidence at trial and the new test results with regard to die pants, shoes, and shirt led to the court’s conclusion that the DNA test results under Haddock’s first motion were “not of such materiality that a reasonable probability exists that it would result in a different outcome at trial.”
The district court’s incorporation of the State’s proposed findings of fact and conclusions of law and the general tenor of the district court’s findings and conclusions indicate the district court considered the entire record and all of the DNA evidence before concluding there was not a reasonable probability of a different outcome. Hence, we conclude the district court did not ignore our instructions on remand.
We next turn to whether the district court erred in ruling that the evidence was not of such materiality that a reasonable probability exists that it would result in a different outcome at trial. Before reaching the substance of that issue, however, we must resolve a dispute between the parties regarding the appropriate standard of review the district court should have used and the standard that applies to our review of the district court’s order.
Materiality—District Court Standard and Appellate Standard of Review
Haddock asserts the district court “entirely discounted the favorable evidence with the 'unfavorable’ evidence from the second round of testing without any consideration of the effect of the testing results on the evidence as adduced at trial” and its “absolute failure to apply the materiality standard to the favorable results [was] erroneous.” Regarding this court’s review of this portion of the district court’s ruling, Haddock asserts a question of materiality presents a mixed question of law and fact over which this court has de novo review.
The State, on the other hand, asserts the standard of appellate review depends on whether the district court’s factual findings concerning the DNA evidence are favorable or unfavorable. The State maintains this court clearly set forth in Haddock II that an abuse of discretion standard applies to the district court’s determination of whether to grant a new trial based on the favorable evidence. The State, however, argues that a negative finding standard applies to the district court’s finding that the DNA test results under the second motion were unfavorable and to the conclusion that a new trial was not warranted.
As the State maintains, this court clearly set forth in Haddock II the standard of review to be applied when the question presented is whether a new trial must be granted based on favorable evidence: “[J]ust as an order granting a new trial under K.S.A. 22-3501(1) is subject to an abuse of discretion, the standard of appellate review of a trial court’s order under K.S.A. 2005 Supp. 21-2512 is whether the trial court abused its discretion.” Haddock II, 282 Kan. at 499 (citing State v. Adams, 280 Kan. 494, 501, 124 P.3d 19 [2005], disapproved on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111 [2012]). In Adams, we stated: “A decision [regarding a motion for new trial] will not be reversed on appeal ‘if a reasonable person could agree with the district court’s decision.’ ” Adams, 280 Kan. at 501 (quoting State v. Monda, 273 Kan. 856, 861, 46 P.3d 1162 [2002]).
After our decision in Haddock II, we refined our abuse of discretion standard of review by differentiating three ways in which a district court can abuse its discretion. First, a district court abuses its discretion if a decision is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court. This is the standard applied in Adams to the appellate review of a district court’s ruling on a motion for new trial. Second, a district court abuses its discretion if its decision is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion. Third, a district court abuses its discretion if a decision is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a 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). We further noted that “this three-part standard may narrow the broad discretion previously allowed when this court routinely applied only the no-reasonable-person-would-take-the-same-view standard.” Ward, 292 Kan. at 550-51.
Even more recently, in Warrior, we applied this three-prong standard to our review of a district court’s determination that a defendant was not entitled to a new trial even though the State failed in its affirmative duty to disclose evidence favorable to the defendant as required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see Warrior, 294 Kan. at 505-10. Under Brady, “favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ [Citations omitted.]” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). This standard is strikingly similar to the test we directed the district court to use on remand in this case, stating: “[I]n considering whether to grant a new trial based on this favorable evidence, tire district court must consider whether the ‘evidence . . . [is] of such materiality that a reasonable probability exists that it would result in a different outcome at trial.’ [Citations omitted.]” Haddock II, 282 Kan. at 502.
In Warrior, after recognizing that we have traditionally applied an abuse of discretion standard when conducting a Brady analysis, we considered which of the three differentiated standards under our new abuse of discretion framework might apply. We noted that materiality had traditionally been reviewed as an issue of law regardless of the context in which the issue arose and a decision to grant a new trial had traditionally been considered under the no-reasonable-person-would-agree standard. After discussion of various cases, we concluded the determination of materiality is reviewed de novo with deference to a district court’s findings of fact, but the district court’s denial of the defendant’s motion for new trial is reviewed under the traditional abuse of discretion standard. Warrior, 294 Kan. at 505-10.
As applied to the standard we stated in Haddock II, we conclude this means that a de novo standard applies to the determination of whether the evidence was material. Materiality is explicitly incorporated into the new trial standard imposed in Haddock II. We also conclude that materiality is a component of the determination of whether the postconviction DNA test results would have pro bative value to a finder of fact, a test we mentioned in Haddock II when discussing the categorization of evidence as favorable or unfavorable under K.S.A. 21-2512(f)(2). Haddock II, 282 Kan. at 495. Hence, we will conduct a de novo review of the determination of whether the evidence has favorable probative value, giving deference to the district court’s factual findings. Consistent with Kansas’ long-standing standard, we will determine if a reasonable person would agree with the district court’s decision regarding whether the postconviction DNA test results were not of such materiality that a reasonable probability exists that it would result in a different outcome at trial.
Arguably, the same standard could apply to a determination of whether evidence is unfavorable to a defendant. But the State suggests we should apply the negative finding standard of review. Generally, “ ⅛ negative finding that a party did not cariy its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.’ ” Dalmasso v. Dalmasso, 269 Kan. 752, 758, 9 P.3d 551 (2000) (quoting Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 275, 864 P.2d 1148 [1993]); see 143rd Street Investors v. Board of Johnson County Comrnrs, 292 Kan. 690, 720, 259 P.3d 644 (2011). This standard is highly deferential, but it has not been “actually applied to undermine the de novo, independent review of legal questions with which appellate courts are properly imbued.” State v. Mai-x, 289 Kan. 657, 661, 215 P.3d 601 (2009). Here, as we have held, the determination of materiality as it relates to an assessment of the favorability or unfavorability of evidence is a question of law. Consequently, at least as to the initial review of whether the results of the DNA testing were material to a determination that the DNA testing was favorable or unfavorable, the negative finding standard of review does not apply.
In examining materiality under K.S.A. 21-2512, Haddock suggests we should look to caselaw applying the Brady test and, specifically, to the guidelines outlined by the United States Supreme Court in Kyles, 514 U.S. 419. In response, the State argues, in part, that the Kyles standard has no place in this appeal that has not been pursued as a Brady violation.
The State’s argument is supported by District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69, 129 S. Ct. 2308,174 L. Ed. 2d 38 (2009), in which the United States Supreme Court rejected a state court’s decision that Brady applied to a defendant’s postconviction attempt to obtain DNA testing. The Supreme Court held, in part, that a convicted person’s “right to due process is not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief. Brady is the wrong framework.” Osborne, 557 U.S. at 69. Hence, from a constitutional due process standpoint, each state is able to determine the procedure it will apply to provide postconviction relief, as long as the procedure is fundamentally adequate to vindicate the substantive rights of those wrongfully convicted. Osborne, 557 U.S. at 69. Also, it is important to note that Haddock has not asserted Brady or due process rights in this appeal.
Nevertheless, Kansas courts apply a standard that, as we have discussed, mirrors the Brady standard, at least when considering whether to grant a new trial such as is requested in this case. See Haddock II, 282 Kan. at 499 (“[0]ne such order ‘in the interest of justice’ is an order for a new trial. In order to grant such an order, the ‘evidence must be of such materiality that a reasonable probability exists that it would result in a different outcome at trial.’ ”). Consequently, the United States Supreme Court’s guidance in Kyles may have at least some nonbinding application.
In discussing the materiality test, the Kyles Court emphasized four points. First, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Second, materiality is not a sufficiency of evidence test. Third, once a reviewing court has found constitutional error, there is no need for further harmless-error review because the constitutional standard for materiality imposes a higher burden than the harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). Fourth, the State’s disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. Kyles, 514 U.S. at 434-39.
Haddock does not seek application of the first or third points. We, therefore, express no opinion regarding whether those points apply to an analysis under K.S.A. 21-2512. Haddock does argue for application of the Kyles Court’s second and fourth points.
In the second point, the Court indicated the materiality test is not a “ ‘sufficiency of the evidence’ ” test. -In other words, a “defendant need not demonstrate that after discounting the inculpa-tory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Kyles, 514 U.S. at 434-35. The Court explained that “[o]ne does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435. At least as to the test that applies in Kansas to a motion for new trial based on new evidence, the Kyles second point is consistent with determining whether there is a reasonable probability the new evidence would have led to a different result. See State v. Thomas, 257 Kan. 228, 235, 891 P.2d 417 (1995) (party seeking new trial based on new evidence bears the burden of bringing forward new evidence and establishing that the new evidence is “sufficiently credible, substantial, and material to raise in the court’s mind, in light of all the evidence introduced at the original trial, a reasonable probability of a different outcome upon retrial”).
We also agree with the fourth and final point in Kyles, which was that the potential impact of the evidence should not be examined piece by piece but should be examined as a whole and in light of the entire record. This test was explained by the United States Supreme Court in another case, House v. Bell, 547 U.S. 518, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006):
“[A] court must consider ‘ “all the evidence,” ’ old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under ‘rules of admissibility that would govern at trial.’ [Citations omitted.] Based on this total record, the court must make ‘a probabilistic determination about what reasonable, properly instructed jurors would do.’ [Citation omitted.] The court’s function is not to make an independent factual determination about what likely occurred, but rather to assess tire likely impact of the evidence on reasonable jurors. [Citation omitted.]” House, 547 U.S. at 538.
The Court later repeated and emphasized that a court’s examination of postconviction DNA testing “requires a holistic judgment about ‘ “all the evidence,”’ [citations omitted], and its likely effect on reasonable jurors applying the reasonable-doubt standard.” House, 547 U.S. at 539.
With this standard in mind, we consider how this standard was applied to Haddock’s two motions.
Shoes, Shirt, and Pants—Favorable or UnfavorableP
We begin with the question of whether the district court erred when it ruled the postconviction DNA testing of the shoes, shirt, and pants was “not favorable.”
Haddock argues the postconviction testing of the sample taken from the shoes was favorable to him because the results provided a basis to question two aspects of the evidence at trial. During the trial, there was evidence a shoe sample tested positive for blood and was consistent with Barbara’s DNA and inconsistent with Haddock’s. Postconviction testing established that the sample was only presumptively, not conclusively, blood and that the DNA was a mix of Barbara’s and Haddock’s. As to the blood on the shirt, Haddock similarly argues Wraxall’s testimony was that the spots were only presumptively blood. Additionally, Haddock argues that locating blood above the cuff was favorable. This argument is explained in Haddock’s brief to this court, as follows:
“This Court should find Mr. Wraxall’s results to be favorable to Mr. Haddock. In order to rationalize why a person who had supposedly just committed a bloody murder and orchestrated the crime scene would leave the clothes he was wearing at the scene, the prosecution argued that Mr. Haddock was wearing a sweater at the time of the murder and therefore didn’t know that blood had gotten onto the cuff of the shirt he was wearing underneath. This was the State’s theory as to why Mr. Haddock would have left the shirt he was wealing at the time of die murder in the laundiy room.”
As to the pants, Haddock argues that because the clothing was presented as a “package” during trial, a package that was tied together by the spatter evidence, the evidence relating to the shoes also undercuts the evidence relating to the pants.
In conducting our de novo review of materiality, we agree with Haddock’s argument that some aspects of Wraxall’s testing and testimony are favorable to Haddock in that it means the evidence is somewhat weaker than presented at trial. Specifically, the testimony that emphasized the presumptive nature of the testing could be argued to create a reasonable doubt. Also, the finding of the additional spots of blood on the shirt adds weight to Haddock’s argument that a person who had orchestrated a crime scene would not leave bloody clothes at the scene. These points could have probative value to a trier of fact. Hence, the district court erred to the extent it entirely discounted this evidence as unfavorable.
This error does not necessarily entitle Haddock to a reversal of the district court’s ruling, however. As we have previously discussed, although the district court labeled die results as unfavorable, it did not dismiss the motion under K.S.A. 21-2512(f)(l). Instead, die district court examined all of the new DNA evidence— regarding the pants, shirt, shoes, hair, eyeglasses, and fingernail scrapings—and did so in a holistic sense of the entire record. Further, while the district court judge mentioned he still believed Haddock was guilty, the judge continued by applying the standard stated in State v. Haddock, 282 Kan. 475, 146 P.3d 187 (2006) (.Haddock II), that applies when a petitioner seeks a new trial. Thus, ultimately the district court made a probabilistic determination about what reasonable, properly instructed jurors would do in light of all the new evidence and concluded there was a reasonable probability the jurors would still convict Haddock of murdering Barbara.
Hence, we are able to review the ultimate issue in this case even though we find the district court erred in its preliminary materiality/favorableness labeling. We reach this conclusion because, regardless of the label, reasonable people would agree that the minimal favorable impact of the clothing evidence was outweighed by the unfavorable impact of the results from the additional DNA testing of these items. Further, reasonable people would agree with the district court that there was a reasonable probability that juror would convict Haddock even with all of the new evidence.
Did the District Court Abuse Its Discretion in Refusing a New Trial?
In determining if there was a reasonable probability that the new evidence would have changed the result of the trial, the district court noted that the blood evidence was inculpatoiy. Although we have noted that Wraxall’s testimony weakened some aspects of the State’s evidence, his testing implicated Haddock and was consistent with the State’s blood spatter theory.
As to the point that the blood testing was presumptive, not conclusive, this point must be weighed against Wraxall’s explanation that he puts the presumptive test together with finding DNA in a sample to confirm the sample is blood. Wraxall explained that false positives are usually caused by materials such as metal, leather, soil, or grime that do not contain DNA. Hence, while Wraxall’s testimony would have allowed Haddock to stress the presumptive nature of the testing, as a whole his testimony supported the State’s theory and left little room for doubt that Barbara’s blood was found on Haddock’s pants, shirt, and shoes.
Similarly, while Wraxall’s testimony regarding additional blood spots on the shirt would have allowed Haddock to reinforce his argument that a scheming assailant would not have left clothes on the floor of the house, the evidence would not have drastically altered the parties’ arguments. The additional spots were so faint they were even overlooked in pretrial testing; hence, it was reasonably probable a jury could conclude Haddock was unaware of the spots. Also, even if the jury relied on the sweater as an explanation for why Haddock believed he could leave the shirt behind, the sweater theory did not provide an explanation for leaving the pants. The jury had to resolve this question at trial. Finally, it is reasonable that a jury could conclude the sleeve of a sweater could have been pushed away from the wrist during an altercation and faint spots of blood could have fallen inches above the cuff. Con-traiy to Haddock’s argument, the spots and the additional test re- suits do not significantly alter any implication or theory presented to the juiy.
Overall, as the district court found, Wraxall’s testing confirmed that Barbara was the major DNA contributor to the spots found on the shoes, pants, and shirt. He placed the probability at 1 in 65 billion that it was her DNA on the shoe sample. Significantly, none of the postconviction DNA test results impacted the evidence that undercut Haddock’s theory that blood had been dripped or smeared on his clothes—the lack of any other blood in the house, the nurse’s testimony that the blood had coagulated and was not dripping, and the consistency of the spatter pattern. Finally, the postconviction testing does not establish that the spots on the clothing were not blood. See State v. Bronson, 267 Neb. 103, 114, 672 N.W.2d 244 (2003) (noting that even though DNA tests on what was claimed at trial to be a bloody fingerprint on a vase did not prove the substance to be human blood, “the DNA-tested evidence is not inconsistent with the evidence presented at trial which indicated that the substance likely was blood”).
Regarding the eyeglasses, Haddock argues that the DNA test results provide physical evidence of the presence of unknown persons at the crime scene. This overstates the evidence, which at best establishes that an unknown person left DNA on the glasses at some point, not necessarily while at the crime scene. Still, it would have allowed Haddock to make the argument that there was evidence of a third person at the scene. Also, the lack of DNA from under Barbara’s fingernails would have reinforced the argument made by defense counsel that the State had not presented physical evidence that she caused the scratches on Haddock’s wrist. Neither of these postconviction DNA tests shifts the evidence at trial significantly, however. As previously noted, defense counsel had already pointed out the lack of DNA Unking the scratches to Barbara, and there are multiple reasonable explanations for a third party’s DNA being deposited on reading glasses that are more probable than having a murderer’s DNA being deposited on only one item found at a murder scene. The only other third-party DNA evidence found in items located in the garage was on one of the hairs found in Barbara’s hand, which came from a woman, while the DNA from the glasses came from a man.
Without question, the postconviction DNA testing that is the most favorable to Haddock is the testing that established one of the hairs found in Barbara’s hand came from a female and was not consistent with Barbara’s DNA. Haddock argues he is entitled to a new trial because these results significantly weaken the State’s case against him and require the State to develop a new “central theme.” Haddock argues the State presented a new theory of “contamination” in the postconviction proceeding with regard to the hair and the district court inappropriately adopted this new theory.
We agree it is significant that the postconviction DNA evidence is inconsistent with the evidence presented at trial that the hair was Haddock’s. Still, we conclude reasonable people could agree with the district court’s assessment that this new evidence was not reasonably probable to change the outcome of the trial.
First, we note that tire State’s central theme, that there was a struggle between Barbara and her assailant, would not have changed. This theme was supported by the defensive injuries suffered by Barbara. Rather than changing the theme, the new evidence would have weakened the theme. Haddock is correct, however, that the State developed a posttrial explanation for the hair’s presence that was not discussed at trial. Nevertheless, the presence of a reasonable explanation mitigates the potential impact of the evidence if there were a retrial, a consideration that can be made in making a probabilistic determination about what reasonable, properly instructed jurors would do.
Further, the evidence at trial left open the possibility the hair was Barbara’s or that of a third party. Granted, the new evidence is more concrete and persuasive. Yet, it does not tilt the scales to a reasonable probability of a different outcome. As we previously quoted, defense counsel in closing argument noted the hair could be Barbara’s and stressed there was a reasonable doubt as to whose hair was in her hand. Also, we note that contrary to Haddock’s argument, when he was asked about the hair being his, the district couit sustained an objection that the question was not consistent with the evidence. The objection and the district court’s ruling reinforced that the DNA testing did not conclusively establish that the hair was Haddock’s.
Finally, although there is no doubt that the evidence of a hair with a root follicle that matched Haddock’s DNA in Barbara’s hand was significant evidence against Haddock, the presence of someone else’s hair is not conclusive proof that someone else was the murderer. As the district court pointed out, the crime occurred in a garage and many individuals attempted to save Barbara prior to preservation of the crime scene.
Moreover, contrary to Haddock’s argument, the State did not emphasize the presence of the hair during the trial. In fact, as to all of the DNA evidence, a comment made by the prosecutor during closing argument is telling. The prosecutor stated, “We know that is an orchestrated crime scene, absolutely no doubt about that.” He then argued how the evidence supported this conclusion, and then stated, “This is probably better than DNA evidence in terms of your ability to narrow the scope.” As noted by the United States Supreme Court: ‘Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent.” Osborne, 557 U.S. at 62.
At trial and now, the State maintains that the key to the case is the orchestrated crime scene combined with evidence that only the family knew the wood pile had previously fallen, Haddock’s insistence to police and his neighbors that the death was accidental and caused by the wood falling, and the movement of the car from the garage to the driveway after the beating. The other compelling evidence includes Haddock’s reaction to the crime, the wood chips in his shoes, the timeline, and tire blood spatter evidence, which postconviction DNA testing reaffirms was formed by Barbara’s blood.
This situation stands in sharp contrast to the cases on which Haddock relies. Primarily, Haddock relies on State v. Armstrong, 283 Wis. 2d 639, 700 N.W.2d 98 (2005), which he maintains could just as easily describe his case.
In Armstrong, the defendant was convicted of first-degree sexual assault and first-degree murder. Postconviction DNA testing discredited nearly all of the physical evidence presented at trial, re vealing that the hairs found on the bathrobe draped over the victim’s body were not the defendant’s hairs, that the semen found on the victim’s robe was not the defendant’s semen, and that there was no indication that any blood found under the defendant’s fingernails or on his toes was that of the victim. The Wisconsin Supreme Court noted that at trial the State “argued that the physical evidence ‘conclusively’ demonstrated that [the defendant] was the murderer.” Armstrong, 283 Wis. 2d at 697. The court concluded: “The DNA evidence now excludes [defendant] as the donor of certain physical evidence that was relevant to the critical issue of identity; the jury did not hear this evidence, and the State used the physical evidence assertively and repetitively as affirmative proof of [defendant’s] guilt.” Thus, the court reversed the defendant’s conviction and remanded the matter for a new trial. Armstrong, 283 Wis. 2d at 701.
Unlike tire facts in Armstrong, here only one piece of physical evidence that was relied on at trial, the hair, was discredited through postconviction DNA testing. And, there is a significant amount of other evidence establishing Haddock’s identity as the killer, unlike two other cases on which Haddock relies—People v. Waters, 328 Ill. App. 3d 117, 128-29, 764 N.E.2d 1194 (2002) (reversing and remanding conviction where the victim’s identification of defendant was based on the act of him urinating on her but postconviction DNA testing excluded defendant as the source of the urine), and Pers. Restraint of Bradford, 140 Wash. App. 124, 132, 165 P.3d 31 (2007) (postconviction DNA testing revealed the presence of DNA from an unidentified male and not the defendant on tire mask placed on the victim).
While the evidence that the hair and eyeglasses had the DNA of two unknown people—one male and one female—could be used to suggest others may have also been present when Barbara was murdered, that evidence does not dispute the overwhelming evidence of Haddock’s guilt to which the State and district court point. See Moore v. Com., 357 S.W.3d 470, 487-88 (Ky. 2011) (“[T]he other evidence of Appellant’s guilt as recounted by the trial court undermines what little favorableness could be gleaned from the presence of another person’s DNA.”).
In light of the evidence adduced at trial and through Haddock’s second motion for DNA testing, we conclude that a reasonable person could agree with the district court’s ruling that it is not reasonably probable the postconviction DNA testing results would change the juiy’s verdict that Haddock premeditated the murder of Barbara. Consequently, we hold the district court did not err in denying Haddock’s motions for new trial.
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The opinion of the court was delivered by
Luckert, J.:
The primary issue before this court is whether the Court of Appeals erred in holding that an action seeking reformation of an executory contract does not accrue until a party discovers a mutual mistake in the contract language. We conclude this holding is contrary to a long line of cases in which this court has held: (1) A claim for reformation of a contract is subject to the contract statute of limitations stated in K.S.A. 60-511(1), (2) a cause of action for reformation of a contract accrues when a mutual mistake is made, (3) the legislature has not provided a discovery exception in K.S.A. 60-511, (4) the courts cannot write a discovery exception into K.S.A. 60-511, and (5) the discovery exception of K.S.A. 60-513(3) does not apply to reformation of a contract based on a mutual mistake because the exception only applies when a party alleges or proves fraud. Based on these principles, we hold a cause of action for reformation of a contract based on an alleged mutual mistake accrues when the mistake is made, not when the mutual mistake is discovered. We further conclude that the application of these rules does not depend on whether a contract is executed or executory and the rules do not vary just because the contract relates to the title of real property, contrary to the Court of Appeals’ holding. Consequently, we reverse the Court of Appeals’ holding and affirm the district court’s order of summary judgment in which the district court found that the plaintiffs reformation claim was barred by K.S.A. 60-511(1) because the mutual mistake occurred when the contract was executed, which was more than 5 years before this case was filed.
The defendants raise three additional issues, but we do not resolve these issues because we conclude they are not properly before us for appellate review. The case is remanded for consideration of the plaintiff s remaining claims.
Facts and Procedural Background
This case was brought by Margaret Russell Law, who filed claims for breach of contract, breach of the implied duty of good faith and fair dealing, reformation of contract, and declaratory judgment against The Law Company, Inc. and Law Company Building Associates (LCBA) (collectively referred to as the Defendants). These claims arose from a financial agreement relating to a commercial building in Wichita.
Law entered into a contractual relationship with the Defendants through a series of transactions that occurred after Law received stock in The Law Company in 1979 as part of a property settlement with her former husband, who was a founder of The Law Company. The Law Company is a Wichita architectural, engineering, and construction firm. At the request of some of the principals in The Law Company, Law agreed to exchange her stock for ownership of the office building occupied entirely by The Law Company; this building is referred to as the “Market Street Building.” The Law Company and Law then entered into a 25-year landlord and tenant lease that expired on December 31, 2004. Under the lease, Law had the right to sell the Market Street Building or to lease the building to a third party at the conclusion of the 25-year lease term.
In 1980, seeking larger office space, The Law Company developed property known as the “Riverview Building” and leased a portion of the premises to tenants that were not affiliated with The Law Company. The building was developed with the use of industrial revenue bonds (IRBs), and a long-term leasehold interest was conveyed to LCBA, a limited partnership formed by The Law Company for the purpose of holding title to the Riverview Building.
On January 12, 1984, Law and the Defendants entered into a “Financing Agreement.” Under the terms of the Financing Agreement, Law sold her interest in the Market Street Building to LCBA and the lease on that property was cancelled. In exchange, LCBA granted Law “equity participation rights” in the Riverview Building, which entitled Law to, among other things, an agreement for LCBA to pay Law $406,836.19 and an 11 percent equity participation share in the gross proceeds of any future sale or refinancing or 11 percent of the liquidation proceeds upon the termination of LCBA. The parties also executed a promissory note, secured by a mortgage, which provided for periodic payments to Law until December 31, 2004.
In 1986, LCBA offered to prepay the promissory note in exchange for a release of the mortgage by Law. The parties could not agree on an inteipretation of the prepayment clause in the promissory note. This dispute resulted in litigation that included an appeal to the Court of Appeals. See Law Co. Bldg. Assocs. v. Law, No. 67,545, unpublished opinion filed April 2, 1993, rev. denied 253 Kan. 859 (1993). Although the issues in that appeal have little relevance to the present litigation, the fact there was extensive litigation spanning several years serves as the basis for the Defendants to argue that any mistake in the Financing Agreement should have been discovered during that litigation, which would make Law’s claims untimely under any interpretation or application of K.S.A. 60-511(1).
On June 24, 2002, Marc A. Porter, vice president of The Law Company and general partner of LCBA, executed a “Certifícate of Amendment to Certificate of Limited Partnership of Law Company Building Associates” continuing the term of the LCBA limited partnership until December 31,2024, unless dissolved sooner. The certificate was filed with the Kansas Secretary of State on June 27, 2002. Porter testified in a deposition that LCBA was extended because the Defendants had no intention of selling the Riverview Building and faced significant taxes if LCBA were liquidated or dissolved. The result of this extension was that the Defendants invoked Paragraph 4(a) of the Financing Agreement and maintained they were not obligated to discharge Law’s equity participation.
Paragraph 4(a) provides: “[T]he Equity Participant [Law] shall be entitled to 11% of the liquidation proceeds upon expiration of the term of LCBA in 2004 or earlier dissolution. (Paragraph 4(e) shall apply if the term of LCBA shall be extended by the partners thereof to a date later than December 31, 2004.)” The referenced paragraph 4(e) of the Financing Agreement is entitled “Discharge of Equity Participation.” In that provision, tire parties agreed that the “Equity Participation shall apply to each Refinancing but is discharged upon completion of one or more transactions which, taken together, amount to a Sale of all of the IRB Project or all LCBA partnership interests.” The remainder of the paragraph provides examples of how the equity participation would be calculated in the event of a series of partial sales. As the Court of Appeals stated, it “curiously . . . does not speak to any such ‘discharge’ in the event of LCBA term extension beyond the December 2004 date.” Law v. Law Company Building Assocs., 42 Kan. App. 2d 278, 280-81, 210 P.3d 676 (2009), rev. granted September 7,2010. As we will discuss in more detail, this omission serves as the basis for Law’s contract reformation claim.
Law made her claim for contract reformation after the promissory note matured, the term of LCBA was extended, and the Defendants refused to pay her equity participation. According to an affidavit submitted by Porter:
“(A) Pursuant to the terms of the Promissory Note, Law Company paid Margaret Law the principle [sic] sum of $406,836.19 when the note matured on December 31,2004. The total amount of money paid to Margaret Law for tire Market Street Property, including interest, during the period from April 10,1984, through December 31, 2004, was approximately two and one-fourth million dollars ($2,250,000.00);
“(B) On June 24,2002, the term of the LCBA limited partnership was extended to December 31, 2024. LCBA has not expired and has not been dissolved or liquidated;
“(C) The Riverview Building has not been sold or refinanced.”
In November 2006, Law filed her petition in the present case. Law attached to her petition an “Intermediate Draft” of the Financing Agreement. According to Law, this unexecuted draft memorialized the parties’ intent that Law had the right to liquidation of the equity participation if the partners extended the term of LCBA. Paragraph 4(e) of the Intermediate Draft, entitled “Discharge of Equity Participation,” provides in part:
“Further, if (i) the partners of LCBA extend the term of LCBA to a date later than December 31, 2004, or the liquidation of LCBA does not commence by April 15, 2005 for any other reason, and (ii) the Equity Participation has not previously been discharged, then the Equity Participant shall then have a right to liquidation of the Equity Participation upon one hundred twenty (120) days’ advance notice to LCBA.”
Law asserted that this provision was inadvertently omitted from the Financing Agreement as the result of a mutual mistake.
In Count I of her petition, Law alleged that the Defendants’ refusal to pay her the fair liquidation value of the equity participation in 2005 constituted a breach of the Financing Agreement. Law also argued:
“LCBA and the Law Company have further breached and anticipatorily breached the Financing Agreement as properly construed by failing to pay the full amount due under the Promissory Note and by wrongfully attempting to justify a minimal valuation of the Equity Participation by claiming that funds used for debt reduction, payment of the IRB Bonds, usual and customary repair and maintenance and other operating expenses should be a credit against the Equity Participation to be paid to the Plaintiff.”
In Count II, Law argued that the Defendants breached the implied duty of good faith and fair dealing
“by failing to pay the fair liquidation value of tire Equity Participation in a timely fashion!;] by failing to pay the full amount due under the Promissory Note; by attempting to inaccurately depict the Equity Participation as minimal by claiming that usual and customaiy repair and maintenance expenses and other operating expenses should be credited] against the value of the Equity Participation; by knowingly and wrongfully attempting to take advantage of an inadvertent scrivener’s error that is contrary to the intent of the parties; and by knowingly refusing to pay the funds due to Plaintiff in the hope that she would be unwilling or unable to assert her rights.”
In Count III, Law asked the court to reform the Financing Agreement to include this “inadvertently omitted” provision of Paragraph 4(e) that was “mistakenly” omitted from the executed Financing Agreement. Finally, in Count IV, Law requested a declaratory judgment to determine whether the inadvertently omitted language should be read into the Financing Agreement, whether she was entitled to immediate liquidation of the equity participation under the Financing Agreement “as properly construed,” and the amount that should be awarded to ber under the Financing Agreement.
The Defendants answered, denying all of Law’s claims and asserting a counterclaim for declaratory judgment that the Defendants had paid the promissory note in full. They also filed a motion to dismiss, claiming all of Law’s claims were barred by the appli cable statutes of limitations, K.S.A. 60-511 and K.S.A. 60-507. They also argued: (1) Law was precluded from offering parol evidence of the Intermediate Draft; (2) Law’s claim for the implied duty of good faith and fair dealing should be dismissed because it failed to state a claim for which relief could be granted; and (3) Law should be estopped based on the prior lawsuit between the parties from asserting that the Financing Agreement does not reflect the parties’ intent.
The district court held a hearing on the Defendants’ motion. The Defendants argued that all of Law’s claims were subsumed by her contract reformation claim and, therefore, barred by K.S.A. 60-511. Law countered that she had raised four separate counts and that her claims were filed within 5 years of the Defendants’ breach of contract, as required by K.S.A. 60-511. In arguing that the reformation claim in Count III was not barred, Law relied on Klepper v. Stover, 193 Kan. 219, 392 P.2d 957 (1964), as support for her argument that the contract statute of limitations does not begin to run on a cause of action for correction of a mutual mistake until the mistake'is discovered or could have been discovered by due diligence.
Law also raised an equitable estoppel argument, asserting that in 1989, when the Defendants argue the statute of limitations ran on Law’s claim, the parties were involved in a lawsuit in which the Defendants were attempting to sell the Market Street Building as quickly as possible. Finally, Law raised an issue of ultra vires, arguing that Porter was not empowered by the LCBA Board to execute the extension.
The district court treated the Defendants’ motion as one for summary judgment and granted the motion solely on the ground that Law’s claims were subsumed within her claim for contract reformation and barred by the 5-year statute of limitations set forth in K.S.A. 60-511. The court entered the following order:
“1. Considering this matter in the light most favorable to the plaintiff and assuming the existence of a mutual mistake, this is a contract reformation claim. All matters that are argued and presented in this case by plaintiff are subsumed within that claim.
“2. Plaintiff s claims are barred by the five-year statute of limitations set forth in K.S.A. 60-511. Plaintiffs estoppel and unclean hands arguments do not have merit and do not preclude application of this statute of limitations.
“3. Plaintiff s reliance on Klepper v. Stover, 193 Kan. 219, 392 P.2d 957 (1964), is also misplaced.
“4. Plaintiff s claims of ultra vires have not been sufficiently presented.”
Law filed a motion to alter or amend the district court’s judgment. She claimed: (1) The district court erroneously consolidated all of her claims into the contract reformation claim, and (2) the district court should not have dismissed her contract reformation claim or her ultra vires claim. After hearing oral arguments on Law’s motion, the district court took the matter under advisement and later denied the motion without elaboration.
Law appealed to the Court of Appeals.
Court of Appeals’ Decision
The Court of Appeals first considered Law’s argument that the district court erred in collapsing her alternative claims into the contract reformation claim. The majority determined that while some of Law’s assertions of breach of tire implied duty of good faith and fair dealing in Count II were “related—if not dependent—upon Law’s reformation claim,” other assertions in Count II were independent of her claim for reformation. Law, 42 Kan. App. 2d at 284-85. The majority explained:
“[Law] elaborates this claim in her reply brief and at oral argument by suggesting that LCBA has no current legitimate business purpose and that the extension in its term was ‘to delay paying a long-promised Equity Participation to an 80 year old woman.’ Particularly due to her advancing age (83), she argues thati/re agreement as construed by defendants means that they control when—if ever—she will be able to realize her equity interest in tire new building. This claim—so articulated—has no basis in allegations regarding any ‘mistake’ in the instrument itself, but rather is based on an implied obligation pursuant to the agreement as executed.” (Emphasis added.) Law, 42 Kan. App. 2d at 285.
In addition, the Court of Appeals held the 5-year statute of limitations period began to run on tire date of a breach of the implied duty of good faith and fair dealing, which in this case occurred in 2005, making Law’s claim timely. Law, 42 Kan. App. 2d at 287.
The Court of Appeals also reversed the district court’s dismissal of all of Law’s declaratoiy judgment claims, ruling that some of them were independent of her contract reformation claim. The court remanded these claims for further proceedings. Law, 42 Kan. App. 2d at 286-87.
Next, the Court of Appeals considered Law’s similar argument with regard to her breach of contract claim. It ruled:
“To the extent [Law] can shoulder her burden on remand in pursuing her claim based on the implied covenant of good faith and fair dealing, we view her claim for express breach of contract (Count I of Petition) as surviving, at least in part. As noted by [Law] on appeal, this count neither alleges any ‘mistake’ nor seeks reformation of the Financing Agreement. Instead, it claims—in part—that the defendants have breached the terms of an associated promissory note and that [Law’s] equity participation has been unjustifiedly valued by defendants by debits that were not authorized by the agreement.” Law, 42 Kan. App. 2d at 287.
The Court of Appeals reversed the district court’s termination of this claim “to this extent only“ and remanded for further proceedings. Law, 42 Kan. App. 2d at 288.
Finally, the Court of Appeals considered the district court’s application of the statute of limitations to Law’s contract reformation claim. The Court of Appeals considered a line of Kansas cases establishing a rule that the statute of limitations begins to run on a reformation claim upon execution of the contract, which the Court of Appeals referred to as tire “unique rule of accrual at execution.” Law, 42 Kan. App. 2d at 288-90. The Court of Appeals concluded this rule had been applied in cases where reformation claims had been limited to attempts to reform a deed or another instrument creating an interest in land. The Court of Appeals reasoned that the policy of the rule is to promote marketable title and that this policy is inapplicable where the instrument sought to be reformed is an executory contract between the original parties. Thus, the Court of Appeals concluded the unique rule of accrual at execution does not apply to claims made during the term of performance of an executory contract. Law, 42 Kan. App. 2d at 290-91.
A majority of the Court of Appeals reversed the district court’s termination of Law’s reformation claim and remanded for further proceedings on this claim as well. The majority noted, however, that Law “will have to shoulder the burden of establishing that she could not with reasonable diligence have discovered the basis for her claims more than 5 years prior to her suit.” Law, 42 Kan. App. 2d at 291.
Judge Pierron dissented, stating that Law had asserted a cause of action for reformation of a contract executed almost 30 years ago and that the statute of limitations had run. Law, 42 Kan. App. 2d at 291-92 (Pierron, dissenting).
The Defendants filed a petition seeking this court’s discretionary review in which the Defendants raised three issues: (1) Whether the Court of Appeals erred in holding that the implied covenant of good faith and fair dealing may be used to prevent a party to a contract from performing as expressly agreed; (2) whether the Court of Appeals erred in holding that the discovery rule applies to the accrual of the statute of limitations period for an action seeking reformation of an executory contract; and (3) whether the Court of Appeals erred in failing to address two other arguments. These additional arguments included: (a) Whether the Financing Agreement was unambiguous and, thus, there was no basis for admitting the parol evidence upon which Law must rely to support her contract reformation claim, and (b) whether Law’s claims were also barred by the 15-year statute of limitations contained in K.S.A. 60-507.
This court granted review, obtaining jurisdiction under K.S.A. 20-3018(b) (petition for review). It is important to note that only a portion of the Court of Appeals’ ruling is subject to our review. The Defendants have not challenged the holdings that many of Law’s claims of breach of the implied duty of good faith and fair dealing, of breach of contract, and for declaratory judgment are independent of her reformation claim. Nor have they challenged the Court of Appeals’ holding that the breach of the implied covenant occurred in 2005, meaning that at least some of Law’s independent claims are not barred by K.S.A. 60-511. As we have explained, “[ajbsent application of a permissive exception for plain error, under Supreme Court Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 69) on petitions for review, the Supreme Court will not consider issues not presented in the petition or fairly included therein.” State v. Allen, 293 Kan. 793, Syl. ¶ 1, 268 P.3d 1198 (2012). Further, “[ujnder Supreme Court Rule 8.03(g)(1), a party must allege that an issue was decided erroneously by the Court of Appeals in order for the issue to be properly before the Supreme Court on petition for review.” Allen, 293 Kan. 793, Syl. ¶ 2.
Standard of Review
Even though the Defendants’ motion was filed as a motion to dismiss, there is no dispute that the district court appropriately considered the Defendants’ motion as one for summary judgment because the court considered matters outside the pleadings. See K.S.A. 60-212(b)(6), (d). An appellate court’s standard of review when a motion to dismiss has been treated as a motion for summary judgment matches that for summary judgment: Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, Syl. ¶ 1, 205 P.3d 1265 (2009).
Issue 1: Extent of Duty of Good Faith and Fair Dealing
The Defendants first taire issue with what they characterize as the Court of Appeals’ “holding that the implied covenant of good faith and fair dealing may be used to prevent a party to a contract from performing as expressly agreed.” This “holding” was based on the Court of Appeals’ interpretation of Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 864 P.2d 204 (1993). See Law, 42 Kan. App. 2d at 285-87.
We disagree with the Defendants’ argument that this was a holding of the Court of Appeals. Rather, the Court of Appeals’ discussion of this matter was mere dicta. To explain this conclusion, we examine the context of the Court of Appeals’ statements and the substance of the parties’ arguments.
In discussing Law’s claims regarding a breach of the implied duty of good faith and fair dealing, the Court of Appeals addressed an argument the Defendants made in their appellate brief about Law’s allegations in Count II of her petition. The Defendants contended the district court could have and should have ruled that Law failed to state a viable claim of breach of the implied duty of good faith and fair dealing. This alternative to the statute of limitations argument was itself divided into two prongs. First, the Defendants argued a breach of the implied duty of good faith and fair dealing must be based on allegations that are distinct from a plaintiff s breach of contract claims and that Law failed to meet this requirement in pleading Count II. Second, they argued a claim of breach of the implied duty must be based on an existing contractual term and cannot change the parties’ agreement; they argued Law’s allegations failed in this regard as well. It is this second prong that tire Court of Appeals addressed.
In response to the Defendants’ arguments, Law presented a procedural rather than a substantive argument. She suggested the issue was not properly before the Court of Appeals because “[t]he trial court did not rule on the sufficiency of the Plaintiff s pleading of Count II and the arguments and authorities advanced by the Defendants do not support an effort by this Court to rule on this issue without a ruling from the Court below.”
In making these arguments, neither party cited Kansas Baptist Convention. The case was apparently first cited by Law during oral arguments before the Court of Appeals. Law then later filed a Rule 6.09(b) letter regarding the decision. See Supreme Court Rule 6.09(b) (2011 Kan. Ct. R. Annot. 49). In the letter, Law argued that Kansas Baptist Convention established that “Kansas law implies the covenant of good faith and fair dealing in every contract, except employment at will contracts.” Law further argued: “This included [the Defendants’] duty to fairly and faithfully discharge [Law’s] Equity Participation as agreed. In addition, at a time when LCBA no longer had a legitimate business purpose [the Defendants] could not fairly extend the term of LCBA so as to frustrate [Law’s] right to the Equity Participation.” (Emphasis added.) In a responsive Rule 6.09(b) letter, the Defendants suggested Kansas Baptist Convention was factually distinguishable and concluded: “Based on the allegation in [Law’s] 6.09(b) letter that the parties had agreed to discharge her Equity Participation at a date certain, [Kansas Baptist Convention] is inapplicable.”
Against this backdrop, the Court of Appeals majority began its discussion of Kansas Baptist Convention by stating:
“Contrary to the argument advanced by defendants, a party can breach this implied covenant absent a specific covenant. In fact, our Supreme Court has noted that Kansas courts will impose an obligation of good faith that would override express contract terms, except in the area of employment-at-will. Kansas Baptist Convention, 253 Kan. at 724-26.
“Our Supreme Court’s opinion in Kansas Baptist Convention demonstrates the viability of such a claim under remarkably similar circumstances.” Law, 42 Kan. App. 2d at 286.
Summarizing Kansas Baptist Convention, the Court of Appeals stated drat the case stood for the concept that “where one party to a contract has gained the ability to destroy or injure the economic interest of the other party, a claim may lie for breach of implied covenant even though no express provisions of die contract have been breached.” Law, 42 Kan. App. 2d at 286. The Court of Appeals reasoned:
“Here, [Law] similarly alleges that the ability of LCBA to forever deny realization of her equity participation by unwarranted extensions has breached the same implied covenant. We express no opinion on the merits of her claim; we simply hold that such a claim is not governed by the unique accrual upon execution rule applicable to reformation claims.” Law, 42 Kan. App. 2d at 286.
This inconclusive discussion of the “potential viability” of Law’s claim is clearly dicta. The question of the scope and application of the implied covenant of good faith and fair dealing is not an issue that was decided by the district court or the Court of Appeals, and it is not an issue that must be decided to determine if the district court erred in granting summary judgment. The Court of Appeals, as previously quoted, found many of Law’s implied covenant claims had “no basis in allegations regarding any ‘mistake’ in the instrument itself, but rather [are] based on an implied obligation pursuant to the agreement as executed.” Law, 42 Kan. App. 2d at 285. Hence, die court’s ruling regarding whether the implied covenant claims were collapsed into the reformation claim did not depend on the potential viability of a claim under the Kansas Baptist Convention holding.
As dicta, the Court of Appeals’ discussion of Kansas Baptist Convention is not binding. As this court stated in Medford v. Board of Trustees of Park College, 162 Kan. 169, 173, 175 P.2d 95 (1946): “Nobody is bound by dictum [, citation omitted,] 'not even ... the court itself when it may be further enlightened by briefs and arguments of counsel and mature consideration and when it becomes a question squarely presented for decision.’ [Citations omitted.]”
This statement from Medford is particularly apt in this case because the parties’ arguments before us regarding Kansas Baptist Convention make it clear that the question of how Kansas Baptist Convention applies to this case depends on the resolution of several disputed facts that may distinguish this case from Kansas Baptist Convention. In large part, the parties’ arguments on the issue are factual rather than legal, and they dispute all of the material facts that frame the legal arguments. These disputed facts were not resolved by tire district judge, who made no factual findings and merely assumed there had been a “mutual mistake.”
These factual disputes prevent us from analyzing the scope of the implied covenant of good faith and fair dealing as it is not appropriate to resolve the disputes on appeal. See Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 325, 255 P.3d 1186 (2011) (appellate court does not weigh conflicting evidence or determine questions of fact). Consequently, at this point, all we can do is repeat the words found in Kansas Baptist Convention and then hypothetically discuss how it might apply in this case. Because of the wide array of possible factual resolutions that might occur in the district court, this guidance would be of minimal value. Moreover, as our discussion of the parties’ arguments illustrates, it is not even clear that Law is relying on Kansas Baptist Convention in the way it was discussed by the Court of Appeals majority. Finally, it would be inappropriate for us to reconsider any holdings in Kansas Baptist Convention when it is not clear those holdings are at issue in this appeal. The appropriate time for the parties’ arguments to be addressed is before the district court on remand where the parties’ contentions can be defined, factual findings can be made, and the law can be applied to those known facts.
Issue 2: Accrual on Discovery or When Mistake Is Made?
The next and primary issue—and one we can resolve—is whether the Court of Appeals erred in holding that Law’s reformation claims did not accrue until the alleged mutual mistake was discovered because the Financing Agreement was executoiy. Law, 42 Kan. App. 2d at 290-91.
The Defendants argue this ruling is contrary to a long line of Kansas cases. In addition, the Defendants assert that the following public policy arguments support application of the accrual-on-execution rule to all claims for reformation of a contract: (1) the rule protects parties from doubt and the hazards of litigation; (2) it enforces the fundamental rule that a party to a contract has a duty to read and examine its terms; (3) it increases the likelihood that claims based on contract terms will be brought at a time when witnesses are available and memories are fresh; and (4) it preserves the sanctity of contracts.
Law maintains the Court of Appeals majority correcdy ruled that the 5-year statute of limitations period with regard to her contract reformation claim should run from the date of discovery of the mistake and not from the date of the mistake itself. She urges us to affirm the Court of Appeals majority’s reasoning that the public policy of promoting the marketability of title has “little applicability to executory contracts between two contracting parties who mutually make a mistake.” See Law, 42 Kan. App. 2d at 290.
Thus, the parties’ arguments and the Court of Appeals’ decision present an issue of when the statute of limitations under K.S.A. 60-511(1) begins to run on a claim to reform an executory contract because of a mutual mistake: (1) on execution of or agreement to a contract, which is the point in time when the mutual mistake is made, or (2) on discovery of the alleged mutual mistake. In considering this choice, we begin with a general discussion of K.S.A. 60-511 and the long line of caselaw in which this court has applied the rule that a claim for reformation accrues on execution or for mation of a contract. We will then look at the reasons the Court of Appeals departed from these cases.
A. KS.A. 60-511(1) and the General Rule that Contract Actions Accrue on Breach, Not When the Breach Is Discovered
The statute of limitations that applies to claims for reformation of a contract is K.S.A. 60-511(1). See Beams v. Werth, 200 Kan. 532, 544, 438 P.2d 957 (1968) (reformation of deed; citing K.S.A. 60-511 [5]). Consequently, our analysis begins with an examination of the statutory language in K.S.A. 60-511. That examination is governed by the well-known standard that interpretation and application of a statute of limitations is a question of law over which an appellate court’s review is unlimited. As in any situation in which a court is called upon to interpret or construe statutory language, the touchstone is legislative intent. To divine legislative intent, a court begins by examining and interpreting the language the legislature used. Only if that language is ambiguous does a court rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction. When a statute is plain and unambiguous, a court merely interprets the language as it appears; a court is not free to speculate and cannot read into the statute language not readily found there. Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012); Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 280, 241 P.3d 15 (2010).
The statute that is the focus of this appeal is K.S.A. 60-511, which provides in relevant part:
“The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.
“(5) An action for relief, other than the recovery of real property not provided for in this article.”
Before the Court of Appeals, Law argued that “[u]nlike breach of contract claims, which expressly fall within K.S.A. 60-511(1), equitable claims for reformation fall within the catchall provisions of K.S.A. 60-511(5).” With regard to the question of accrual date, however, there is no distinction in the statute between K.S.A. 60-511(1) and K.S.A. 60-511(5).
Notably, neither subsection nor any other portion of the statute specifically addresses accrual. Further, the statute includes no exceptions such as the discoveiy one found in K.S.A. 60-513(3), which provides that “[a]n action for relief on the ground of fraud . . . shall not be deemed to have accrued until the fraud is discovered.”
The distinction between the language in K.S.A. 60-511 and K.S.A. 60-513(3) has played an important role in this court’s application of K.S.A. 60-511. For example, as long ago as 1904, in the oft-cited case of Railway Co. v. Grain Co., 68 Kan. 585, Syl. ¶ 2, 75 Pac. 1051 (1904), this court determined that a prior version of the fraud discovery exception did not apply to the contract statute of limitations. Even though Railway Co. is over a century old, we begin our discussion with that case because it is cited as guiding authority in virtually all of the cases relied on by the parties and the Court of Appeals.
Railway Co. was based on a claim that the defendant had breached an executory, oral contract. The plaintiff argued the statute of limitations did not accrue at tire time the defendant breached the contract because the defendant fraudulently concealed the breach. In rejecting this argument, the Railway Co. court noted the discoveiy exception that applied to actions seeking relief on the ground of fraud—the exception previously found in G.S. 1901, ch. 80, art. 3, § 4446, sec. 18, Third, now found in K.S.A. 60-513(3)—but concluded tire exception did not apply to a contract action. The exception, the court noted, was limited by its wording to actions seeking relief for fraud. The Railway Co. court stated:
“There may be strong reasons for making an exception where there is concealment of a cause of action or where the element of fraud enters somewhat into the breach of the contract upon which an action is brought. The legislature, however, after considering the subject, did not deem it wise to make such exception, but on the other hand positively declared that concealed fraud shall operate to toll the statute in the single action brought for relief on the ground of fraud.” Railway Co., 68 Kan. at 589.
Ultimately, the Railway Co. court held:
“The action accrues when the contract is violated and not at the time when tire plaintiff learns that it has been violated. In the absence of a statute malting concealment an exception to the statute of limitations, the courts cannot create one, however harsh and inequitable the enforcement of the statute may be. [Citations omitted.]” Railway Co., 68 Kan. at 591.
In the long line of cases following Railway Co., this court has frequently recognized that the Railway Co. holding represents a minority position when compared to decisions of courts in other jurisdictions. For example, in State, ex rel., v. McKay, 140 Kan. 276, 281, 36 P.2d 327 (1934), the court cited Railway Co. and noted its holding is “not in harmony with some decision of other states.” Nevertheless, the McKay court noted that the Kansas rule had been followed for “more than a generation” and during this time the court had made it clear that the policy issues were for the Kansas Legislature to decide, not the court. McKay, 140 Kan. at 281.
Many of the cases spanning “more than a generation” were discussed in Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P.2d 136 (1934), a case cited by the Court of Appeals majority in this appeal and relied on by the Defendants. Regier was originally filed as a quiet title action; then, in a cross-petition, the defendants sought reformation of the property description in a deed on the ground of mutual mistake. The defendants argued they did not discover the mistake in tire deed until nearly 30 years after it had been recorded. The Regier court held the cross-petition was barred by the statute of limitations based on the Railway Co. rule that an “action accrues when the contract is violated and not at the time that the plaintiff learns that it has been violated.” Regier, 139 Kan. at 182. The Regier court did not cite any special considerations arising from the fact the case dealt with a deed. Instead, after reviewing many of the cases following Railway Co. and observing there is a “radical difference of judicial opinion” across the country regarding whether a contract cause of action accrues when a breach occurs or when a breach is discovered, the court reaffirmed the reasoning of Railway Co. and refused to “ingraft a new exception upon statute of limitations.” Regier, 139 Kan. at 182.
Yet, the court acknowledged that the accraal-on-discovery rule had been applied in two cases that also dealt with mistakes in deeds—Duvall v. Simpson, 53 Kan. 291, 36 Pac. 330 (1894), overruled by Regier, 139 Kan. at 183, and Coal Co. v. Miller, 88 Kan. 763, 129 Pac. 1170 (1913), overruled by Regier, 139 Kan. at 183. Despite the fact these cases were based on a discovery rule that was contrary to Railway Co. and similar cases, they had never been expressly overruled. Nevertheless, the Regier court determined that “the long line of decisions . . . following and approving the theory adopted in Railway Co. v. Grain Co., ... in effect does overrule them” because “exceptions may not be added to those prescribed by the legislature nor implied, and . . . the fact that a party does not know that he has a cause of action does not prevent the running of the statute of limitations, and the rule of these later cases must be now regarded as controlling.” (Emphasis added.) Regier, 139 Kan. at 183.
In a series of cases following Regier, this court applied the accrual-upon-execution rule to several reformation claims. Virtually every case dealt with reformation of a deed. See, e.g., Palmer v. The Land & Power Co., 180 Kan. 492, 500, 306 P.2d 152 (1957) (citing G.S. 1949, 60-306, a prior version of K.S.A. 60-511, and holding that an action to reform a deed or to correct a mistake in a conveyance must be brought within 5 years of when the deed was executed or recorded); Siegel v. Hackler, Administrator, 181 Kan. 316, 318, 310 P.2d 914 (1957) (citing G.S. 1949,60-306, Sixth, and providing, in dicta, that if the proceeding were to be considered as one to reform a deed on the ground of mutual mistake it was filed too late as it was filed more than 5 years after the deed was executed); accord Collins v. Richardson, 168 Kan. 203, 209, 212 P.2d 302 (1949) (action to reform trust regarding real property; citing G.S. 1935, 60-313, and holding that “[considered as a cause of action to obtain reformation on the ground of mistake, the statute commenced to run from the date the mistake was made”).
After a recodification of the statutes of limitations, the court reaffirmed these holdings in Beams, 200 Kan. at 544. The court stated that the prior statute, G.S. 1949,60-306, Sixth, and the holdings in Regier and other cases “confirm that an action to reform a deed on the ground of mutual mistake of tire parties must be brought within the five-year period of the statute of limitations.” Beams, 200 Kan. at 544. The court continued: “There is no indication in any of the commentaries on K.S.A. 1967 Supp. 60-511(5) that any change was intended regarding this section of the statute of limitations in the new code of civil procedure.” Beams, 200 Kan. at 544.
In reaching this conclusion, the Beams court did not discuss an intervening case that took a different approach—Klepper v. Stover, 193 Kan. 219, 219-22, 392 P.2d 957 (1964). Klepper has been cited by Law throughout the proceedings, but the district court concluded Law’s reliance was “misplaced.” The Court of Appeals majority disagreed and relied on Klepper for its decision.
In Klepper, the plaintiff sought to reform a lease because of an alleged mutual mistake in the legal description of the real property. The defendants appealed after the district court rejected their argument that tire plaintiff s claim was barred by the statute of limitations. On appeal, tire Klepper court reversed the district court, finding that the property description in the lease was a mutual mistake by the original parties and that the request for reformation was not barred by the statute of limitations because the defendants were estopped from raising a statute of limitations defense. Klep-per, 193 Kan. at 220.
Before discussing the doctrine of equitable estoppel, the Klepper court found its case distinguishable from Regier. The court then made the statements on which tire Court of Appeals relied in this case:
“Generally speaking, in equity where mistake is sought to be corrected, limitation statutes do not begin to run on the cause of action until the time when the mistake is discovered or when by use of due diligence it ought to have been discovered. (34 Am. Jur., Limitations of Actions, § 174, p. 139.) This is particularly true where a mistake is the basis of the gravamen of the action. (53 C.J.S., Limitations of Actions, § 91, b., p. 1067, c., p. 1069.)” Klepper, 193 Kan. at 221-22.
Although the Klepper court cited these encyclopedic statements of the accrual-on-discovery rule that Kansas had repeatedly rejected, the Klepper court did not rely on this rule to hold that the reformation action was timely and not barred by tire statute of limitations. Instead, the Klepper court transitioned from its discussion of accrual—without reaching a decision regarding accrual—and began a discussion of tolling based on equitable principles. For tolling to occur and the doctrine of estoppel to apply, the court stated that there must be “an element of deception upon which tire plaintiff acted in good faith in reliance thereon to his prejudice whereby he failed to commence the action within the statutory period.” Klepper, 193 Kan. at 222. The Klepper court had already noted its reliance on Rex v. Warner, 183 Kan. 763, 771, 332 P.2d 572 (1958), a case that applied equitable estoppel principles, not accrual rules. Ultimately, the Klepper court concluded that “there are sufficient allegations in plaintiff s petition to allege an equitable estoppel against defendants’ attempt to invoke the statute of limitations as a bar to plaintiff s cause of action.” Klepper, 193 Kan. at 222. Hence, although there is dicta in Klepper that supports the Court of Appeals majority’s decision, the Klepper court’s holding was not based on a determination regarding when the contract reformation claim had accrued but it was based on estoppel principles that prevented the defendant from asserting the defense.
In this appeal, the Defendants suggested to the Court of Appeals that Klepper was distinguishable because it “ Involved a different doctrine—estoppel.’ ” The Court of Appeals majority acknowledged that “the factual context of Klepper must be distinguished on this basis.” Nevertheless, the majority felt the decision was “instructive.” The majority continued:
“We believe the [Klepper] court was clear in stating the rules applicable to an executory lease in a manner quite differently from the ‘line of cases’ previously discussed, and because the subject of the reformation claim in Klepper was an executory lease, the rule was cited and stated to include a discovery rule to toll tire statute [of limitations] under appropriate circumstances.” (Emphasis added.) Law, 42 Kan. App. 2d at 289.
In the closing portion of this passage, the Court of Appeals majority recognized that Klepper applied the discovery rule as an equitable principle to toll the statute of limitations. Without explanation, however, the Court of Appeals ultimately did not apply equitable tolling rules that come into issue once an action has ac crued. Instead, the Court of Appeals transformed the rule to one of accrual.
Before further discussing the Court of Appeals’ analysis, we note that the estoppel analysis in Klepper is of limited help to Law in this appeal. Law presented equitable estoppel arguments to the district court, but the district court rejected the arguments, stating: “Plaintiffs estoppel and unclean hands arguments do not have merit and do not preclude application of this statute of limitations.” On appeal, she did not ask for that ruling to be reversed and has waived that issue. See State v. Raskie, 293 Kan. 906, 919, 269 P.3d 1268 (2012) (citing State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 [2008]) (failure to give supporting authority or adequately brief issue constitutes waiver); Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Hence, for Law to prevail on appeal, she must establish the Court of Appeals correctly morphed the tolling rule into a rule of accrual.
B. The Court of Appeals Departs From, This Long Line of Cases
In transforming the equitable tolling rules of Klepper into a rule of accrual, the Court of Appeals majority relied on Ferrell v. Ferrell, 11 Kan. App. 2d 228, Syl. ¶¶ 1, 2, 719 P.2d 1, rev. denied 239 Kan. 693 (1986). The majority concluded the Ferrell court “recognized that the unique rule of accrual upon execution for reformation claims should be limited to situations where there is a challenge to a deed.” Law, 42 Kan. App. 2d at 290. This conclusion was based on a quotation in the Ferrell decision from Beams in which the Beams court stated: “ Trior decisions confirm that an action to reform a deed on the ground of mutual mistake of the parties must be brought within the five-year period of the statute of limitations.’ ” (Emphasis added.) Ferrell, 11 Kan. App. 2d at 231 (quoting Beams, 200 Kan. at 544); see Law, 42 Kan. App. 2d at 200.
The Court of Appeals’ reliance on this passage to extrapolate any rule of accrual is puzzling because the sentence says nothing about accrual of a cause of action. And this statement was merely made as part of the Ferrell court’s analysis that led it to the conclusion that the 5-year statute of limitations in K.S.A. 60-511(5) applied to a deed reformation claim rather than the longer quiet title statute of limitations in K.S.A. 60-507. Ferrell, 11 Kan. App. 2d 228, Syl. ¶ 1; see K.S.A. 60-507 (“No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, not provided for in this article, after fifteen [15] years from the time the cause of action accrued.”)- Also, although the facts of Ferrell related to an alleged mistake in a deed and the court cited cases relating to the reformation of a deed, there is nothing in the Ferrell court’s reasoning that suggests the court felt there was a basis to formulate a unique accrual rule specifically for deeds.
Nevertheless, building on the Klepper court’s statement about equitable tolling of an executory contract and the Ferrell court’s statement indicating that the contract statute of limitations applied to claims for reformation of a deed, the Court of Appeals majority in this case reasoned:
“Obviously, die applicable statute of limitations has occupied an essential and important function in cases addressing deeds or instruments of conveyance that are placed of record; the application of the rule in these cases is designed to set a maximum time period in which to bring an action and to give security to the possession and ownership of land as against those who have failed to bring their action within the prescribed period. The policy underpinning is clearly to promote marketable titles, but these beneficial effects of the rule are clearly inapplicable where the instrument sought to be reformed is an executory contract between the original parties and where an essential aspect of the agreement for performance, after 20 years, has allegedly been frustrated if not destroyed by one of the parties.” Law, 42 Kan. App. 2d at 290.
The reasoning that a more limited time period—one that would not be extended because a mistake had not been discovered—is an important policy when marketable title is at stake is contrary to the Ferrell court’s recognition that the longer 15-year statute of limitations provided for in K.S.A. 60-507 applies to a quiet title action—an action whose sole purpose is to resolve adverse and competing interests that cloud the marketability of title. The Ferrell court noted it was the plaintiff s decision how to plead a cause of action and that the plaintiff shortened the time period for filing the action by choosing reformation as a remedy. Ferrell, 11 Kan. App. 2d at 230. Another consideration that undercuts the Court of Appeals’ rationale that marketability of title justifies a different rule is this court’s past holding that the equitable remedy of reformation is “subject to being cut off by a bona fide purchaser.” Beams, 200 Kan. at 544.
In sum, we find no persuasive basis for concluding the Ferrell court was carving a rule applicable to deeds or for distinguishing real estate contracts and deeds from other contracts.
Nor do we find a basis for a separate rule for executory contracts. Railway Co. involved an executory contract and yet the court held the claim for breach of the contract accrued when the breach occurred, not when the breach was discovered. Railway Co., 68 Kan. at 591. This accrual-upon-execution rule derives from a long-standing rule that contract actions accrue as soon as the right to maintain a legal action arises. E.g., Estate of Draper v. Bank of America, 288 Kan. 510, 534, 205 P.3d 698 (2009); see also Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 746, 457 P.2d 1 (1969) (citing Regier, 139 Kan. at 181-82); Price, Administrator v. Holmes, 198 Kan. 100, 106, 422 P.2d 976 (1967) (citing Regier). A cause of action for breach of contract accrues on the date of breach, not the date of discovery, and, likewise, a cause of action for reformation of a contract based on mutual mistake accrues on the date of mistake, not the date of discovery of the mistake. As a federal court applying Kansas law to an executory contract held in Pizza Management, Inc. v. Pizza Hut, Inc., 737 F. Supp. 1154, 1159 (D. Kan. 1990): “Breach of the real or true agreement may enable the parties to discover their mutual mistake in the written instrument, but it is only the making of the mistake which allows the party to bring an action to reform and which triggers the commencement of the five-year limitations period.” See Graphic Technology, Inc. v. Pitney Bowes Inc., 968 F. Supp. 602, 607 (D. Kan. 1997) (applying the rule of accrual upon execution in Regier and its progeny to a claim for reformation of a stock purchase agreement).
Further, we have not found any decision where the executed or executory nature of the contract made a difference in the determination of whether a reformation claim had accrued for statute of limitations purposes. Rather, although application of a statute of limitations was not at issue, there are a few jurisdictions that have indicated the rules regarding reformation are the same whether the instrument being reformed is executed or executory. See Kolski ex rel. Kolski v. Kolski, 731 So. 2d 169, 172-73 (Fla. Dist. App. 1999); S. Dep. & T. Co. v. Coal & Coke Co., 234 Pa. 100, 109, 83 A. 54 (1912); Russell v. Curran., 66 Wyo. 173, 189, 206 P.2d 1159 (1949).
Finally, we note that in reaching its holding the Court of Appeals majority deviated from the long line of cases that we have discussed in which this court refused to apply a discovery exception in a contract reformation case based on an alleged mutual mistake. In these cases, this court adhered to a rule stating that the discovery exception in K.S.A. 60-513(a)(3) “ "only applies when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action or to prove fraud to entitle him to relief/ [Citation omitted.]” McKay, 140 Kan. at 280. The McKay court explained that if a claim does not require proof of fraud, the exception does not apply even if there is evidence of fraud. McKay, 140 Kan. at 280.
A claim for contract reformation based on an alleged mutual mistake, such as Law alleges in this case, does not depend on or require proof of fraud. See Unified Gov’t of Wyandotte County v. Trans World Transp. Svcs., 43 Kan. App. 2d 487, 490, 227 P.3d 992 (2010) (claim for reformation of lease and deed based on mutual mistake does not require proof of fraud and “may be shown even if the parties did not carefully examine [the instrument] to ascertain whether it expressed their agreement” or on “[m]ere negligence in executing or accepting a written instrument”). The discovery exception of K.S.A. 60-513(a)(3) does not apply to a claim for reformation of a contract based on an alleged mutual mistake.
On the other hand, if a plaintiff has pleaded fraud as the basis for the reformation rather than mutual mistake, requiring the plaintiff to prove fraud in order to recover, this court has applied the discovery rule of K.S.A. 60-513(3). E.g., Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 427, 449 P.2d 477 (1969) (reformation of insurance policy on ground of fraud must be filed within 2 years of discovery of fraud under K.S.A. 60-513[3]); Mingenback v. Min- genback, 176 Kan. 471, 478-80, 271 P.2d 782 (1954) (statute of limitations in action for reformation of deed based on fraud did not begin to run until discovery of fraud); but see Woodworth v. Kendall, 172 Kan. 332, 335, 239 P.2d 924 (1952) (cause of action for reformation of lease due to fraud in the inception of the lease started to run under G.S. 1949, 60-306, Third, on date of lease’s execution). Cf. Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 988, 889 P.2d 130 (1995) (concluding that even though statute of limitations for a statutory cause of action is governed by K.S.A. 60-512[2] because a cause of action under K.S.A. 17-1268[a] is fraud based, it does not accrue until “the plaintiffs discover [or reasonably should have discovered] tire alleged fraud”).
Here, Law has based her reformation claim on mutual mistake, not fraud, and she cannot take advantage of the discovery exception in K.S.A. 60-513(3). Her cause of action accrued when the alleged mistake was made, and her alleged failure to discover the mistake until years later does not alter the date of accrual under K.S.A. 60-511(1). The Kansas Legislature has not provided a discovery exception in K.S.A. 60-511, and Kansas courts cannot engraft an exception which the legislature, perhaps because of the policy issues raised by the Defendants, has not included in the statute. This principle has been applied by this court in the contract cases we have discussed, as well as in other cases subject to other statute of limitations bars. E.g., Kelly v. VinZant, 287 Kan. 509, 527-28, 197 P.3d 803 (2008) (“In contrast [to K.S.A. 60-513(b)], however, the battery limitations provision does not contain any similar language, merely providing an action for battery shall be brought within 1 year. K.S.A. 60-514[b]. Kelly asks us to graft an exception onto K.S.A. 60-514 such as the legislature has provided in K.S.A. 60-513. That argument belongs in the legislature, not here.”); Pizel v. Zuspann, 247 Kan. 54, 74, 795 P.2d 42, modified on other grounds by 247 Kan. 699, 803 P.2d 205 (1990) (“A cause of action for breach of contract accrues when a contract is breached . . . , irrespective of any knowledge on the part of the plaintiff or of any actual injury it causes.”).
We agree with the separation of powers principles that control these cases and conclude the Court of Appeals erred in applying a discovery exception not recognized by the Kansas Legislature. Hence, we conclude Law’s cause of action for reformation of the contract accrued when the Financing Agreement was executed, which was more than 5 years before this action was filed.
Issue 3: Other Grounds Not To Be Considered for First Time on Appeal
Finally, the Defendants argue that two other grounds not addressed by the Court of Appeals, but raised before the district court in their motion to dismiss, support the district court’s dismissal of this case: (a) The Financing Agreement is unambiguous and, thus, there is no basis for admitting tire parol evidence upon which Law must rely to support her reformation claim, and (b) Law’s claims are also barred by the 15-year statute of limitations contained in K.S.A. 60-507.
As argued before us, the issue of admissibility of parol evidence relates to Law’s attempt to admit the Intermediate Draft to support her reformation claim. Because we have affirmed the district court’s grant of summary judgment on Law’s reformation claim, this issue is moot. Further, as we have discussed, K.S.A. 60-507 does not apply to contract reformation claims. See Beams v. Werth, 200 Kan. 532, 544, 438 P.2d 957 (1968).
To the extent either argument extends beyond Law’s reformation claims, die parol evidence and K.S.A. 60-507 issues were not discussed or decided by either the district court or the Court of Appeals. Generally, the issues before this court on a petition for review are limited to issues that “were decided erroneously by the Court of Appeals”; nevertheless, “[i]n civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review.” Rule 8.03(g)(1) (2011 Kan. Ct. R. Annot. 72). Typically, this preservation depends on the requirement that “[i]n a civil case, the petitioner [filing a petition for review] shall also list, separately and without argument, additional issues decided by the district court that were presented to, but not decided by, the Court of Appeals, which the petitioner wishes to have determined if review is granted.” (Emphasis added.) Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 70).
While this court has occasionally reviewed issues not decided in the district court or the Court of Appeals, doing so takes this court outside its traditional role as an appellate court and works to the disadvantage of the parties because they cannot formulate arguments in response as they would in an appeal from a district court ruling. Usually, there must be a compelling or persuasive reason for us to act in the role traditionally reserved for the district court. No such reason is presented here, and we decline to address the issues of the admissibility of parol evidence and the application of K.S.A. 60-507.
Summary
In summary, the Court of Appeals’ ruling that Law alleged separate and independent claims for breach of the implied duty of good faith and fair dealing, breach of contract, and declaratory judgment are not subject to our review because those rulings were not raised in the petition for review. Consistent with the Court of Appeals’ decision, the case is remanded to the district court for consideration of those claims.
The district court’s decision on the single issue subject to our review—that Law’s reformation of contract claim is barred by the K.S.A. 60-511(1) 5-year statute of limitations—is affirmed, the Court of Appeals’ decision reversing the district court on that issue is reversed, and the case is remanded to the district court for further proceedings.
Moritz, J., not participating.
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The opinion of the court was delivered by
Buser, J.:
David A. Holman was convicted by a jury of three counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). This is a direct appeal of those convictions and the sentences imposed by the district court. This court has jurisdiction over Holman’s appeal under K.S.A. 22-3601(b)(l).
Holman raises several errors regarding the district court’s rulings on evidentiary matters at trial. In particular, he contends the trial court erred in the admission of evidence under K.S.A. 60-455 involving an uncharged sexual offense he allegedly committed against the complaining witness. On the other hand, he complains of the trial court’s refusal to admit evidence of the prior sexual conduct of the complaining witness under the Kansas rape shield statute, K.S.A. 21-3525, and evidence of the prior sexual conduct of her sister. Holman also contends the trial court impermissibly limited his cross-examination of the complaining witness in violation of the Confrontation Clause of the Sixth Amendment to tire Constitution of the United States. With regard to Count II of the second amended information, Holman claims the trial court’s granting of the State’s motion to expand the time frame of the offense at the conclusion of the defense case was reversible error. With regard to Counts IV and V, Holman contends his convictions violate the Double Jeopardy Clauses of the Fifth Amendment to the Constitution of the United States and § 10 of the Kansas Constitution Bill of Rights because they subject him to multiple punishments for the same offense. Finally, Holman raises two related claims of error regarding his enhanced sentencing in Counts IV and V ac cording to K.S.A. 21-3504(c) and K.S.A. 21-4643(a)(l)(C) (Jessica’s Law).
Upon our review of these issues, we conclude Holman has not shown reversible error in the trial court’s rulings regarding the evidentiary matters, limitation of cross-examination, or amendment of the charging document. We determine, however, that Holman has shown a violation of his constitutional right prohibiting multiple punishments for the same offense. As a result, we affirm the conviction in Count IV but reverse the conviction in Count V and vacate that sentence. Finally, the enhanced off-grid sentence imposed in Count IV is vacated and the case is remanded with directions to resentence Holman in accordance with the Kansas Sentencing Guidelines Act (KSGA) nondrug grid box for his conviction on that count.
Factual and Procedural Background
Holman’s three convictions of aggravated indecent liberties with a child relate to his illicit sexual conduct with a young girl, T.M.A. Holman was the stepfather of T.M.A., who was born in November 1997. At the time of trial, she was 10 years old and had just completed the fourth grade in school.
At trial, T.M.A. described three sexual encounters involving Holman, which resulted in the State filing five criminal charges. According to T.M.A., the first time she was molested was in the spring of 2006. At that time, Holman, T.M.A. and her older sister, A.A., were seated on a couch in the living room of their home. Holman placed his hand underneath T.M.A.’s jeans and underpants and moved his fingers back and forth and inside her vagina. According to T.M.A., “It hurt.” T.M.A. said she did not tell anyone about the touching because she was scared. This incident was charged in Count I as rape, in violation of K.S.A. 21-3502(a)(2). In the alternative, Holman was charged in Count II with aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A).
Another incident occurred sometime after May 2006. T.M.A. testified that Holman led her downstairs to the laundry room where he laid her down on a blanket while both were clothed. T.M.A. related that while Holman was on her leg, he “moved up and down” on her in a humping motion. During this time Holman told her, “I’m a bad boy, and you’re a bad girl.” This incident resulted in the State charging Holman in Count III with aggravated indecent liberties.
A final incident took place during the spring of 2007 when some family members were watching the movie “Saw” in the living room of their home. As related by T.M.A., during the movie Holman “put a blanket over his hand and then put it inside my pants.” At some point, T.M.A. also testified that Holman “took my hand and put my hand inside of his pants.” Holman then had T.M.A. move her fingers back and forth on his penis. A.A., who was born in March 1995 and was 13 years old at the time of trial, testified that she observed Holman and T.M.A. and “he had his hand in her pants, and she had hers in his.” Based on this incident, Holman was charged in Counts IV and V with aggravated indecent liberties.
A few days after the last incident, during the late evening, A.A. spoke privately with T.M.A. and asked her, “[T.M.A.], what was David doing to you on the couch when you guys were sitting next to each other?” According to A.A., T.M.A. “just land of sighed” and moved her fingers back and forth. T.M.A. tiren related to A.A. some of the incidents involving illicit sexual acts perpetrated by Holman upon T.M.A. T.M.A. asked A.A. not to tell anyone, but A.A. insisted that their maternal grandmother be told at once.
According to A.A.,
“we told my grandma, we have something important to tell her about Dave, and then ... I basically told her everything [T.M.A.] told me, and . . . she was kind of just speechless and then, like, shocked, and I don’t think she could believe it, but then she was asking [T.M.A.] if it was true. [T.M.A.] nodded and said, Tes.’ ”
The girls’ grandmother testified that “[A.A.] came in and said that [T.M.A.] needed to talk to me, only [T.M.A.] wouldn’t talk.” Their grandmother related that both girls had a “very serious” demeanor and T.M.A. was crying. After awhile, T.M.A. “started opening up” and told her grandmother about some of the incidents.
The next morning, May 2, 2007, T.M.A., A.A., and their grandmother spoke to the girls’ mother, K.A. According to K.A., “My mother said that she . . . and the girls had something they wanted to tell me, and I looked at the girls, and [T.M.A.] started crying, and she ... said, “Mama, Dave’s been touching me.” K.A. testified, “I was not believing what I was hearing, you know, so I wanted her to be sure.” T.M.A. related the incidents to her mother.
Shortly thereafter, K.A. called Holman at work and “told him diat he needed to talk to me, because I was about to call the police.” According to K.A.,
“[Holman] said, “What’s going on?’ I said, ‘Why don’t you tell me what’s going on.’ And I told him the girls had just come to me, and he got kind of quiet and he sounded nervous and aslced if they were upset about some chores or something. And I said, ‘No.’ And I asked him about some things [T.M.A.] had said and about the hand in die pants, and his reply was that he fell asleep on the couch that night, and he woke up with her hand in his pants.”
In response, K.A. told Holman that it was “because [of] people like him [that] the world is such a horrible place, and [she] hung up on him.” K.A. promptly dialed 911 to report the incidents, and the police arrived shortly thereafter.
After the phone call from K.A., Holman left work early that day and did not return home. The following day, while driving, K.A. saw Holman walking down the street 1 or 2 blocks from their home. Upon seeing her, Holman started to run but then he stopped and fit a cigarette. K.A. called the police from her cell phone. According to her, Holman “looked at me, and he said that he could never tell me how sorry he was” and “that nothing happened that he initiated.” Lastly, Holman asked K.A. to “drive away before [the police] arrested him, so that our son wouldn’t see him be arrested.”
Shortly after his arrest, Holman was interviewed by Detective Don Story. Prior to the recorded interview, Holman was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966), and he signed a written waiver of rights. Holman told the detective:
“There was times when, you know I’d be sitting there and [T.M.A.’s] hand [would] end up in my lap and I’d get up and go to the bathroom. I fell asleep and her hand, I’d wake up, her hand would be in my lap and, you know, sometimes you’d fall asleep with her hand in your lap, well you’d get aroused in your sleep, men do.
. . And, you know, it seemed to transpire a lot.
“... I never reprimanded her for being curious about stuff. And that’s all I ever thought it was . . . you know, a lad’s curiosity about stuff.”
Holman confirmed that when the family was watching the movie “Saw,” he “woke up and [T.M.A.] was touching me.”
Before concluding the interview, Holman stated, “I have done wrong things. I do not know why I’ve done wrong things. ... I totally would like to shoot myself in the head .... I’m not guilty of everything, I’m not innocent of everything. That’s all I can say.”
The jury found Holman guilty of the alternative Count II of aggravated indecent liberties for the first incident that occurred on the living room couch but acquitted him of Count I of rape. He was also found guilty of Counts IV and V of aggravated indecent liberties for the last incident that occurred while the family was watching the movie “Saw.” The jury acquitted Holman of any criminal wrongdoing involving Count III for the incident in the laundry room.
With regard to Counts IV and V, Holman was sentenced to two concurrent life sentences, with a mandatory minimum term of 25 years’ imprisonment under K.S.A. 21-3504(c) and K.S.A. 21-4643(a)(1)(C) (Jessica’s Law). The district court also imposed a concurrent 59-month sentence for Count II. This aggravated indecent liberties count was not charged as a Jessica’s Law offense because it was committed prior to the effective date of K.S.A. 21-4643. Holman filed a timely appeal.
Admission of K.S.A. 60-455 Evidence and Failure to Provide a Limiting Instruction
Prior to trial, the State filed a motion to admit evidence under K.S.A. 60-455 regarding an uncharged incident that occurred in T.M.A.’s bedroom sometime from the spring of 2006 through the spring of 2007. This incident was revealed by T.M.A. following therapy in September 2007. According to T.M.A., she was lying on her bed when Holman removed her pants and underwear and began to perform oral sex upon her.
At the pretrial hearing, Holman’s counsel objected to the State’s motion because
“it essentially places another allegation here that we’re going to have to try to rebut. If the State wanted to charge him with it, they’ve had ample opportunity to do that, and they have chosen not to. So it seems to me that it’s a confrontation issue, as well as a due process issue, to allow them to go into it during the jury trial.”
After argument, the district court ruled that the evidence was relevant and material and that its probative value outweighed its prejudicial effect. In particular, the district court ruled that the evidence was admissible for the limited purposes of proving intent, plan, preparation, lack of mistake or accident, continuing course of conduct, and the relationship of the parties.
Although the State had proposed the wording for a limiting instruction in its motion, the State was directed “to draft a limiting instruction in conformity with the Court’s order.” No limiting instruction, however, was ever submitted to the jury. Of note, Holman never contemporaneously objected at trial to the admission of the K.S.A. 60-455 evidence, submitted his own proposed limiting instruction, or objected to the trial court’s failure to provide the limiting instruction to the jury.
On appeal, Holman does not brief the principal argument he raised in the district court that his rights to confront witnesses and due process would be violated by the admission of the uncharged crime. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Instead, Holman presents two arguments on appeal. First, he contends the trial court erred by admitting the K.S.A. 60-455 evidence at trial for the limited purposes proffered by the State. The State counters that this issue was not preserved for appeal, because Holman did not contemporaneously object to the introduction of the evidence at trial. Holman does not refute the State’s assertion that he did not contemporaneously object at trial, but he claims his pretrial objection was sufficient to preserve the issue for this court’s review. The record is clear that while Holman made a pre trial objection to the questioned K.S.A. 60-455 evidence, he did not object to its admission at trial.
K.S.A. 60-404 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 objection.”
The contemporaneous objection rule, as codified by this statute, “prevents appellate review of evidentiary issues unless there was a timely and specific objection at trial.” State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); see also State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (“We stress today the importance of this legislative mandate. K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.”).
As this court has stated, “ ‘[t]he purpose of the rule requiring a timely and specific objection is to give “ ‘the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.’ ” ’ [Citations omitted.]” King, 288 Kan. at 342. The rationale for the rule is that a trial court is not in position to fully consider whether to admit the evidence until the evidence is offered at trial because the “ ‘[materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.’ ” State v. Jones, 267 Kan. 627, 638, 984 P.2d 132 (1999) (quoting State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 [1989]).
In the present case, Holman objected to the K.S.A. 60-455 evidence prior to trial but neglected to renew that objection during trial. A similar circumstance was presented in State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010). Berriozabal involved a defendant engaging in illicit sexual behavior with a young girl who lived in a residence with the defendant and the girl’s mother. Prior to trial, die State filed a motion under K.S.A. 60-455 to admit evidence of Berriozabal’s prior uncharged sexual conduct with the girl. At the pretrial evidentiary hearing, Berriozabal objected to the prior crimes evidence. The district court granted the motion, how ever, and ruled the evidence was admissible for limited purposes. When the K.S.A. 60-455 evidence was offered at trial, Berriozabal did not renew his pretrial objection to its admission.
In declining to review Berriozabal’s claim on appeal that admission of the prior crimes evidence violated K.S.A. 60-455, this court reiterated: “K.S.A. 60-404 requires a "timely and specific objection to the admission of evidence, which this court has held means that a pretrial objection must be contemporaneously renewed during trial or preserved through a standing objection. [Citations omitted.]” Berriozabal, 291 Kan. at 580; see State v. Riojas, 288 Kan. 379, 385, 204 P.3d 578 (2009); State v. Carapezza, 286 Kan. 992, 1002, 191 P.3d 256 (2008); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006).
We conclude that Holman’s failure to specifically and contemporaneously object at trial to the admission of the uncharged crime evidence offered under K.S.A. 60-455 precludes appellate review.
On a related issue, Holman contends the trial court’s failure to provide the juiy with a limiting instruction indicating the limited purposes for which the jury could consider the K.S.A. 60-455 evidence constitutes reversible error. The State does not respond to this argument.
At the outset, it is uncontroverted that the district court directed the State to prepare a limiting instruction in accordance with the court’s ruling admitting the evidence. The State’s pretrial motion, however, included a proposed limiting instruction:
“Evidence has been admitted tending to prove that the defendant committed crimes or acts other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant’s intent, plan, preparation and lack of mistake or accident.
“This evidence may also be considered for the purpose of proving tire relationship of tire parties and the existence of a continuing course of conduct with T.M.A.”
The State’s proposed trial instructions, however, did not include this limiting instruction.
On appeal, Holman candidly concedes he “did not include a limiting instruction in his requested instructions ... or malee a separate request for a limiting instruction at the instructions con ference.” The record also shows that Holman did not object to the trial court’s failure to provide the jury with a limiting instruction during the trial. Finally, although Holman did not preserve his objection to the admission of the K.S.A. 60-455 evidence, the State does not argue that this failure precludes our consideration of the related instructional issue on appeal. As a result, we will consider the merits of the instructional issue employing traditional analysis.
Generally, appellate courts may review the propriety of a trial court’s failure to provide a juiy instruction in cases where the defendant failed to object at trial: “If a defendant did not request the district court to give a particular jury instruction and did not object to its omission from the court’s instructions, tire defendant’s claim of error for the failure to give the challenged instruction is reviewed under the clearly erroneous standard.” State v. Cook, 286 Kan. 1098, Syl. ¶ 4, 191 P.3d 294 (2008); see K.S.A. 22-3414(3). Moreover, as in the present case, “[t]he defendant’s burden to request an instruction or object to its omission is not satisfied by tire State having initially proposed the instruction to the court.” Cook, 286 Kan. 1098, Syl. ¶ 4.
Accordingly, because Holman failed to object to the lack of a limiting instruction that was originally proposed only by the State, this court will review the issue employing tire clearly erroneous standard. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011); State v. Reid, 286 Kan. 494, 513, 186 P.3d 713 (2008). That standard provides: “ ‘Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred.’ ” Brotan, 291 Kan. at 654.
Evidence introduced pursuant to K.S.A. 60-455 requires a limiting instruction. See State v. Gunby, 282 Kan. 39, 58-59,144 P.3d 647 (2006). As a result, the district court’s failure to provide the jury with a limiting instruction in this case constitutes error. 282 Kan. at 58. Next, we consider whether this error was clearly erroneous based on die evidence presented at trial.
Upon a careful review of the record, we are not convinced there is a real possibility the jury would have rendered a different verdict if it had been given a limiting instruction. Several factors persuade us that the trial court’s omission was not clearly erroneous.
First, the jury’s acquittal of Holman for rape in the first incident and for aggravated indecent liberties in the laundry room incident shows the jury did not exaggerate the importance of the K.S.A. 60-455 evidence and improperly conclude that “ ‘ “because the defendant has committed a similar crime before, it might properly be inferred that he committed this one” ’ ” or “ ‘ “that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in tire [case] at hand.” ’ ” Gunby, 282 Kan. at 48-49 (quoting State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 [1973]). If the jury had considered the K.S.A. 60-455 evidence as proof of Holman’s propensity to engage in illicit sexual behavior, one would expect that Holman would have been convicted of all the crimes charged.
Second, the K.S.A. 60-455 evidence was merely one more allegation by T.M.A., similar to other allegations she made, that were charged in the second amended information. The allegation involving the uncharged crime—similar to the other charges—was proven based on the testimony of the same child whose credibility was at issue throughout the trial. As a result, any potential prejudice from the uncharged crime and lack of a limiting instruction was tempered because T.M.A. (and not another young victim, for example) was the source of the K.S.A. 60-455 evidence.
Third, during closing argument, Holman used the uncharged crime as a focal point to attack T.M.A.’s credibility regarding the charged offenses. In particular, Holman emphasized that T.M.A.’s claim about “oral sex” was not mentioned during her interview with Detective Story or during therapy, and she previously had never mentioned any sexual impropriety that occurred in her bedroom. As a result, Holman claimed T.M.A.’s claim of oral sex was “created . . . [and] doesn’t make any sense. . . . These are problems. These are terrible problems with this case.” In short, Holman was able to use the K.S.A. 60-455 evidence as a means to undermine T.M.A.’s credibility and bolster his defense that T.M.A. lied about all of her molestation allegations.
Finally, given the substantial direct and circumstantial evidence of Holman’s guilt—apart from the K.S.A. 60-455 evidence admitted without the limiting instruction—we are unable to say “ ‘there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred.” See Brown, 291 Kan. at 654.
T.M.A.’s trial testimony was fairly consistent with her pretrial accounts provided to her family and Detective Stoiy. In particular, the lewd conduct during the movie night incident was corroborated by A.A. and, in part, by Holman himself. Holman’s admissions related by his wife (“he could never tell me how sorry he was” and “nothing happened that he initiated”) coupled with his concessions to Detective Story (“I have done wrong things. I do not know why I’ve done wrong things. ... I totally would like to shoot myself in the head . . . .”) indicated Holman’s knowledge of guilt and expression of remorse regarding tire allegations that he molested T.M.A. Finally, Holman’s disappearance from work and failure to return home upon being confronted with the molestation accusations was hardly exculpatory.
For all of these reasons, the trial court’s error in failing to provide the jury with a limiting instruction regarding the K.S.A. 60-455 evidence was not clearly erroneous.
The State’s Motion in Limine
On appeal, Holman contends the trial court erred by sustaining the State’s motion in limine to prohibit evidence relating to A.A.’s molestation by T.M.A.’s biological father when she was 3 years old. In particular, Holman asserts that as a result of her molestation experience, A.A. had both the motive and means to encourage T.M.A. to falsely accuse Holman of molestation so A.A. “would be removed from Mr. Holman’s home and [be] placed with her biological father.” According to Holman, A.A.’s molestation “was integral to the theory of the defense.”
Prior to trial, the State made an oral motion “to prohibit the defense from introducing any evidence that [A.A.] was sexually molested or that [A.A.] molested [T.M.A.] or that some third party has molested this child as evidence in this current trial.” The State argued the evidence was irrelevant to show any improper motive on the part of A.A. and T.M.A. to falsely accuse Holman of the molestations. In particular, the State asserted there was no link between A.A.’s molestation when she was 3 years old and the inference that, as a result of that experience, 7 or 8 years later A.A. told T.M.A. in the present case to “create this law enforcement chaos for th[e] defendant.”
In response, defense counsel clarified with regard to the charged offenses that “we are not going to claim that [T.M.A.] was victimized by somebody else.” Defense counsel argued the evidence was relevant, however, as a “basis for where [T.M.A.] obtained the knowledge regarding details of the sexual abuse, and it’s relevant as far as the motivation of the parties that are making the allegations.” Holman’s counsel asserted that because A.A. had independent knowledge of sexual abuse, she was able to “[pass] that information to [T.M.A.] and, as the older sister, manipulat[e] [T.M.A.] into making . . . false allegations.” Defense counsel also claimed this evidence showed that T.M.A. could have learned sexual terms from A.A. instead of Holman.
After extended argument, the district court ruled, “As far as [A.A.] being allegedly sexually molested in the past, the Court finds that not to be relevant. As far as [A.A.] or anyone else talking to [T.M.A.] about sex or sexual activity, just in general, Court finds that irrelevant.”
After the district court ruled, Holman’s counsel advised that “the defense has no other choice but to proffer what our defense is” because the court’s ruling “is denying the defense the ability to present a defense in this case.” Holman’s counsel then disclosed the defense: That A.A., “from her own statements, is not particularly fond of David Holman. . . . She did not like Mr. Holman.” Defense counsel explained:
“As far as motivation for fabrication of allegations, the fact that [A.A.] has independent knowledge of what can happen in a household . . . when allegations are made, the fact that she has a history and knows, unfortunately, what is involved in a molestation and putting that information to [T.M.A.] and, as the older sister, manipulating [T.M.A.] into making these false allegations, that is why we’re here.”
The district judge responded:
“I think you misunderstood what I said. I mean, you’re free to—to ask [T.M.A.] if she’s had discussions with other people about any touching, any sexual contact with your client. And obviously, if she says yes, then you can follow up with, who did you speak to, and where did that take place, and what was said, you know, if [T.M.A.] says, yeah, I talked to [A.A.] about it, and this is what [A.A.] told me, she said, let’s call the police and that’ll get your client, Mr. Holman, that’ll get him in trouble, and we can get him out of the house, so on and so forth, that’s all admissible.”
The district court also ruled on the admissibility of evidence regarding T.M.A.’s knowledge of sexual terms:
“[Y]ou’re free to ask [T.M.A.] about the terminology she uses regarding any sexual references. If she uses the word humping, you’re free to ask her, you know, where did she learn that word, who told her that, because obviously ... at the time that this allegedly happened she was an eight-year-old . . . [and] if she used that term in any statements she made to law enforcement, then obviously, you’re entitled to ask her, you know, where did you learn that word.... [Y]ou’re free to do that.”
Defense counsel protested, “But the defense is not being allowed to explore the credibility of the only two eyewitnesses to this information.” That comment prompted the following colloquy:
“THE COURT: You can attack their credibility all you want.... The Court will give you latitude when [T.M.A.] and [A.A.] are on the stand to attack their credibility. You can go forward with the vigorous [c]ross-[e]xamination.
“[DEFENSE COUNSEL]: Except we are not going to be allowed, apparently, to go into an explanation, something that can be proven and—proven source of die knowledge that [T.M.A.] has, because it is undisputed that [Á.A.] was, in fact, molested. [A.A.] does, in fact, have knowledge, based on her own horrific experience, that—diat is concrete. That’s not an inference. That’s not a supposition. But we can’t explore it.
“THE COURT: Well, you may or may not be able to explore that, depending on how you go forward with your questioning, how ijou couch the questions. Because as I said earlier, when both of diese young children are on the stand, you can question them as to whetiier or not tiiey had conversations about any sexual contact talcing place between your client, [T.M.A.], and about the vocabulary that was used by [T.M.A.] in describing the sexual contact.” (Emphasis added.)
This court recently articulated the standard used by appellate courts when reviewing tire propriety of the admission or exclusion of evidence:
“First, the court determines relevance, which has two components, materiality and probativeness. Materiality concerns whether die fact to be proved ‘ “has a legitimate and effective bearing on die decision of the case.’ ” [Citations omitted.] Our standard of review for materiality is de novo. [Citation omitted.] On proba-tiveness, the court examines whether the offered evidence has ‘ “any tendency in reason to prove” ’ a disputed material fact. [Citation omitted.] This court reviews probativity for abuse of discretion. [Citation omitted.]
‘Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. [Citation omitted.] When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.’ ” ’ [Citations omitted.]” State v. Magallanez, 290 Kan. 906, 920-21, 235 P.3d 460 (2010).
See State v. Shadden, 290 Kan. 803, Syl. ¶ 4, 235 P.3d 436 (2010); Riojas, 288 Kan. at 383.
In analyzing the relevance of the challenged evidence, we first consider Holman’s theory of defense. Quite simply, Holman denied all of the charges. Moreover, in an effort to defend against the State’s allegations, he sought to undermine the credibility of T.M.A. and A.A.
With regard to T.M.A., Holman’s counsel accused the young girl of lying. He repeatedly focused on claimed inconsistencies and incongruities involving the dates and details of the molestations as disclosed by T.M.A. in out-of-court statements, the preliminary hearing, and during trial. Holman’s counsel, in closing argument, told the jury that inconsistent versions of the alleged crimes occurred “because lies are hard to remember.”
With regard to A.A., defense counsel suggested that she procured T.M.A. to he about the molestations. This theory was subtly presented in opening statement:
“So we have to get to the motivations of why this case has come to light. We have [A.A.]. She’s a 12-year-old whose father lives in Pratt, discussed her already a little bit and the fact that she would like to move to Pratt to be with her father more. . . . [A]t the time these allegations come to light. . . [she] is scheduled to go to Pratt and spend the summer with her father. [A.A.] doesn’t like the tension in the house between her and [Holman], based on the fact that she now has to do chores, she now is responsible for everything else, the fact that she now is being disciplined by somebody, and the fact that [Holman] is not her real dad. [A.A.] has the motivation. It’s really—just depends on how far [A.A.] is willing to go just to see if she can maybe move in with her real dad and see how that works out.”
At trial, primarily through cross-examination of A.A., Holman established that A.A. did not get along with Holman and they oc casionally argued about “[cjhores, school, just normal things.” It was also shown that after T.M.A. reported the molestations, A.A. lived with her biological father in Pratt for slightly more than a year.
In sum, as intimated in opening statement and cursorily developed in cross-examination, Holman implied that A.A. orchestrated T.M.A.’s false accusations because A.A. did not get along with Holman and she wanted to leave his home in order to live with her father in Pratt. On appeal, Holman claims the trial court’s refusal to allow evidence that A.A. was molested prevented him from presenting this defense.
It is well established:
“A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant’s fundamental right to a fair trial. However, the defendant’s right to present a defense is limited by the statutory rules of evidence and tire case law interpreting those rules.” State v. Gaither, 283 Kan. 671, Syl. ¶ 8, 156 P.3d 602 (2007).
There may have been a myriad of reasons why A.A. had ill will towards Hohnan and, as a result, incited T.M.A. to make false allegations against him in order to have a basis to leave Holman’s residence to live with her father. The trial court allowed Holman to fully develop this relevant evidence at trial, and its proof was potentially important to establish A.A.’s motivation and impeach her credibility.
Was the fact of A.A.’s previous molestation, however, material and probative to the case generally and, in particular, to Holman’s defense? The trial court determined this fact was not relevant to the issues in tire case. We agree.
The fact that A.A. was molested by T.M.A.’s biological father 8 years prior to T.M.A.’s accusations against Holman had no legitimate bearing on any issue in this case. Moreover, just because A.A. was sexually victimized as a toddler did not tend to prove she had any reason as a teenager to encourage T.M.A. to fabricate the allegations against Holman. A.A.’s molestation also had no bearing on her credibility, because there was no proffer that A.A. fabricated her own molestation or lied about it. In short, Holman has failed to show the relevance of how A.A/s molestation created an inference that she encouraged T.M.A. to malee false accusations against Holman.
Moreover, in granting the State’s motion in limine, the trial court clarified that it was not limiting Holman’s inquiry into those issues material and probative to his defense. In particular, the trial court allowed Holman to make inquiries regarding whether A.A. had induced T.M.A. to falsely accuse Holman. Holman was also permitted to inquire into the terminology T.M.A. used regarding any sexual references. The trial court also emphasized that defense counsel could engage in “vigorous [c]ross-[e]xamination” of both A.A. and T.M.A. in order “to attack their credibility.” In this way, the trial court afforded Holman the opportunity to develop his defense.
Finally, Holman’s protest that the suppression of evidence regarding A.A.’s molestation impaired his defense is overstated, given that Holman failed at trial to make basic inquiries to establish the foundation for this defense. Our review of the record shows that defense counsel never asked either girl if A.A. told T.M.A. to he about the molestations. Neither girl was questioned about whether A.A. ever informed T.M.A. about her use and understanding of sexual terminology. No questions were posed to the girls about whether A.A. had ever lied or attempted to get Holman in trouble in order to precipitate her return to her father in Pratt. Yet, the district court specifically advised defense counsel that these areas of inquiry were appropriate. Finally, the district court left open the possibility of reconsidering its ruling based upon the girls’ responses to these foundational questions that were never asked.
At the conclusion of trial, defense counsel acknowledged the paucity of evidence to support the notion that A.A. had influenced T.M.A. to lie about the molestations: “We’re guessing when we say it’s ‘cause [A.A.] wanted to go to her father’s house, I mean, just so happens she did, she spent the next year at her father’s house. But, we don’t know .... I don’t know. We’re guessing.” Given the record, defense counsel’s concession was appropriate. The failure of defense counsel to establish this theory of defense, however, was not attributable to the district court’s ruling on the State’s motion in limine.
Evidence of A.A.’s molestation was not material or probative of any disputed material fact. Moreover, although the trial court afforded Holman ample opportunity to develop evidence in support of his defense, a fair appraisal of tire trial evidence shows a scant evidentiary basis for it. The trial court did not err in its exclusion of evidence that A.A. had been molested as a child.
The Defendant’s Motion to Admit T.M.A.’s Prior Sexual Conduct
On appeal, Holman claims the trial court erred in denying the admission of prior sexual conduct of T.M.A. pursuant to the Kansas rape shield statute, K.S.A. 21-3525. Holman argues that in addition to his defense that A.A. manipulated T.M.A. to falsely accuse Holman of the molestations, he also claimed “that T.M.A. acted out in sexually inappropriate ways.” The State counters that “[w]hether T.M.A. acted out previously with a little boy, in a sexually charged fashion or whether she engaged in vaginal touching with A.A. cannot be said to be an ‘integral’ part” of a defense theory that focused on alleging A.A. manipulated T.M.A. into making false allegations against Holman so A.A. could reside with her biological father.
On the second day of trial, Holman presented the trial court with “Defendant’s Motion for Admission of Evidence of Prior Sexual Experience and/or Conduct of the Victim/Complaining Witness, T.M.A. Pursuant to K.S.A. 21-3525.” The motion requested an in camera hearing and “a finding by the Court that all of the evidence outlined in the attached supporting affidavit is relevant and admissible.” The affidavit was signed by defense counsel.
The affidavit stated: “T.M.A.’s father had sexually abused [A.A.] when she was [3] years old. This information was learned when [A.A]. was about 7 years old.” This evidence had previously been addressed by the trial court in ruling on the State’s motion in lim-ine. Additionally, the proffer of evidence stated:
“7. . . . [J.B.], his wife [N.B.], and minor son [C.B.] were at one time good friends of Defendant’s family. During the Spring of 2005, when [T.M.A.] was 6-7 years old, [J.B.] walked in on [T.M.A]. and his minor son (also about 6-7 years of age) acting out sexually inappropriately with each other.
“8. . . . The Holmans approached [T.M.A.] to ask her questions about where she learned this conduct. At that time, [A.A.] asked to speak to Mrs. Holman. [A.A.] disclosed drat she had been inappropriately touching [T.M.A.]’s vaginal area as well as having [T.M.A.] touch hers. Additional incidents of genital contact over the clothing were disclosed to Mrs. Holman by [A.A.]
“9. Mrs. Holman related this information to Defendant. Together they questioned [T.M.A.] who confirmed what [A.A.] said.”
In support of his motion, Holman cited to State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000), for the proposition that the proffered evidence was admissible to “demonstrate that someone else besides the accused is the true source of the complainant’s knowledge about sex.” In overruling the motion, the trial court analyzed the Bourassa opinion:
“The defendant in Bourassa argued the [trial] Court committed error by refusing to allow introduction of the child’s previous sexual history. Bourassa’s theory of defense was that the girl’s father [rather than tire defendant] could have molested her the morning of the alleged incident. The [appellate] Court in Bour-assa concluded . . . the [trial] Court erroneously excluded the evidence.
“The [appellate] Court pointed out that the child was with her father on the morning of the alleged incident. Also, the child had made prior allegations of sexual abuse at the hands of her father.
“This present case is distinguishable from the Bourassa case. The defense in this case is not arguing that someone else molested the child. In the Court’s opinion, the rape shield statute K.S.A. 21-3525 prohibits the defense from presenting evidence of the child’s alleged prior sexual activity. The Court will not allow it.”
Subsequent to the ruling, the State commented that one of the “bothersome things” with Holman’s motion was “the lateness in the filing of [the] motion. It is required to be filed much [more] in advance of trial than it was in this case.” In fact, K.S.A. 21-3525(b) provides that such a motion “must be made at least seven days before the commencement of the proceeding unless that requirement is waived by the court.” On appeal, however, the State does not argue that Holman is procedurally barred from raising this issue for review. As a result, we will not consider the argument. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (An issue not briefed is deemed waived and abandoned.).
Our standard of review regarding this issue is similar to the general standard for review of the admission of evidence discussed earlier. With particular regard to the Kansas rape shield statute, however, this court has stated:
“Relevancy, in addition to being the focus of general considerations regarding the admission of evidence, is the key consideration when applying the rape shield statute, K.S.A. 21-3525(b), which prohibits the admission of evidence of a rape victim’s previous sexual conduct with any person, including the defendant, unless the district court first determines the evidence to be relevant and otherwise admissible. . . . The court has cautioned, however, that ‘the legislature sent a clear message to the courts that a rape victim’s prior sexual activity is generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of.’ [Citation omitted.]” State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
At the outset, Holman’s affidavit did not describe the inappropriate sexual activity that allegedly occurred between T.M.A. and C.B. 1 year prior to the first reported instance of T.M.A.’s molestations. As a result, the trial court was left to speculate regarding the nature and extent of this behavior between two young children. Moreover, Holman did not show how this evidence was relevant to the case generally and, in particular, to proof of his defense. Whether T.M.A. and a young boy were sexually inappropriate had no bearing on Holman’s defense that A.A. induced T.M.A. to lie about the molestations. Similarly, the claimed sexual touching between A.A. and T.M.A. did not tend to prove that A.A. perpetrated a scheme to encourage T.M.A. to falsely accuse Holman of the molestations.
On appeal, Holman suggests that in addition to his defense that A.A. concocted a scheme to falsely accuse Holman, his alternative defense theory was “that T.M.A. acted out in sexually inappropriate ways.” Holman does not explain how T.M.A.’s prior acting out sexually is a defense to the charges that Holman engaged in aggravated indecent liberties with a child. He also cites no caselaw in support of his legal proposition.
With regard to the Kansas rape shield statute, “[i]n the past, this court has concluded that prior sexual conduct evidence may be material if it is relevant to issues such as the identity of the rapist, consent of the complaining witness, or whether the defendant actually had intercourse with the complaining witness.” Berriozabal, 291 Kan. at 586. In the present case, the identity of the offender was not at issue, and T.M.A.’s consent was legally impossible. Nor did Holman assert that another individual committed the sexual acts T.M.A. alleged were committed by Holman. See Bourassa, 28 Kan. App. 2d at 168. This is also not a case wherein the proffered evidence impeached the credibility of a witness. See State v. Arrington, 251 Kan. 747, 750, 840 P.2d 477 (1992). The simple fact that a young girl previously engaged in inappropriate sexual conduct with her sister or another child is not a defense to charges that an adult committed aggravated indecent liberties with the child at a later time.
In the district court, Holman also argued the proffered evidence was relevant to show “an alternate source for T.M.A.’s sexual knowledge.” On appeal, however, this claim, while mentioned in passing, is not argued and is, therefore, abandoned. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (A point raised incidentally in a brief and not argued there is deemed abandoned.).
Regardless of this procedural hurdle, review of the trial evidence reveals that T.M.A.’s use of sexual terminology was never a disputed material fact. As discussed previously, the trial court clearly advised Holman that both A.A. and T.M.A. could be questioned about the sources of the sexual terminology used by T.M.A. to describe the molestations. Although the district court permitted Holman to develop this testimony, a review of A.A.’s and T.M.A.’s cross-examination by defense counsel reveals no inquiry to either individual was made regarding this subject matter.
During closing argument, defense counsel acknowledged this lack of evidence:
“We don’t know where she got this knowledge. We don’t know what she was taught at school. I know my son, we—I was horrified when he was seven years old, found out they were doing sex education at school. We don’t know what the kids in tire neighborhood were talking about. We don’t know where she got this information. . . . We don’t know what they’re watching on TV. We don’t know what influences she has in her life that would cause her to have this knowledge about humping or licking. We don’t know.”
Defense counsel’s remarks appropriately summarized the dearth of evidence relating to the source of T.M.A.’s knowledge of sexual matters. This lack of evidence, however, was not the result of the trial court’s ruling denying the admission of the proffered evidence.
In sum, the prior instances of sexual conduct did not have a “legitimate and effective bearing on the decision of the case” ’ ” or “ ‘ “any tendency in reason to prove” ’ ” a disputed material fact. Magallanez, 290 Kan. at 920. Contrary to Holman’s assertion, these prior instances were not integral to his defense that A.A. induced T.M.A. to lie about the molestations. Moreover, a fair reading of A.A.’s and T.M.A.’s testimony shows this issue was not developed by Holman during trial, although the district court specifically allowed Holman to inquire into the origin of T.M.A.’s knowledge of sexual matters. Finally, it is apparent that the source for T.M.A.’s knowledge of sexual matters was not a disputed material fact or integral to Holman’s defense.
This court has previously observed that “[t]he district court’s determination of whether evidence of prior sexual conduct will be probative of a material issue will not be overturned on appeal if reasonable minds could disagree as to tire court’s decision. [Citations omitted.]” Berriozabal, 291 Kan. at 586. While reasonable minds could disagree with the trial court’s ruling, we are persuaded that Holman did not show either of the necessary components of relevancy—materiality and probativeness—as required under K.S.A. 21-3525 and Kansas caselaw. The trial court did not err in excluding the proffered evidence.
The Trial Court’s Limitation on Holman’s Cross-examination of T.M.A.
Apart from the trial court’s limitation on evidence regarding A.A.’s and T.M.A.’s prior sexual conduct, Holman contends the trial court also impermissibly limited his cross-examination of T.M.A. by sustaining the State’s objections to questions about the prosecutor’s pretrial preparation of T.M.A.’s testimony. The State responds that these rulings did not impair Holman’s ability to challenge T.M.A.’s credibility or result in prejudice.
Holman alleges the trial errors occurred during a portion of his counsel’s cross-examination of T.M.A. when the trial court sustained the State’s objections on three separate occasions:
“Q. [Holman’s Attorney:] Okay. And when was the last time you spoke to [Prosecutor] Ladner outside of a courtroom?
“A. It was tire other day.
“Q. Not that long ago?
“A. No.
“Q. What sort of things did you guys talk about?
“A. About what Dave had id—Dave id and about—and we went over my transcript about when I talked to Detective Story and Aat stuff.
“Q. So she had you go Arough Aings that you’ve said in Ae past?
“A. Yes.
“Q. And Aat was to make sure you got Aings right?
“A. Yeah.
“MS. LADNER [State Prosecutor]: Objection. That is absolutely improper.
“MS. MCLEMORE [Holman’s Attorney]: No.
“THE COURT: Sustained.
“Q. (By Ms. McLemore) Did she tell you why you were going Arough Ae transcripts?
“MS. LADNER: Objection.
“A. Yes.
“MS. LADNER: Improper.
“MS. MCLEMORE: Your Honor—
“THE COURT: No. I’ll allow that. I Aink that’s already been established. Go ahead.
“Q. (By Ms. McLemore) Okay. So id she tell you why it was Aat you guys were going Arough Ae transcripts?
“A. Yes, because it has been a while since I have talked to Detective Story.
“Q. Okay. And she—id she say she wanted to make sure Aat what you said today is Ae same as what you said before?
“A. Yes.
“MS. LADNER: Objection. That is improper.
“THE COURT: Sustained. '
“MS. LADNER: And it is—
“MS. MCLEMORE: Your Honor, may we approach?
“THE COURT: No. Jury will Asregard Ae last question and answer.
“Q. (By Ms. McLemore) Well, what id she say?
“MS. LADNER: Objection. Hearsay.
“THE COURT: Sustained.
“MS. MCLEMORE: Your Honor, I think we need to make a record outside the presence of the jury.
“THE COURT: Miss Ladner is not testifying in this case, counsel. Ask your next question.”
“The scope of cross-examination is subject to reasonable control by the trial court.” State v. Corbett, 281 Kan. 294, Syl. ¶ 4, 130 P.3d 1179 (2006); see State v. Noah, 284 Kan. 608, 616-17, 162 P.3d 799 (2007) (articulating the test used to determine whether the trial court violated the Confrontation Clause of the Sixdi Amendment to tire United States Constitution in limiting cross-examination of a complaining witness). “The trial court’s decision to limit cross-examination is reviewed using an abuse of discretion standard.” Corbett, 281 Kan. at 307-08. An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. Discretion is abused only when no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
At the outset, review of Holman’s claim is made more difficult because of the cursory nature of his argument. Holman does complain about the trial court’s rulings, which he asserts prevented the defense from “questioning related to a witness’ credibility, a primary subject for cross-examination, which is Mr. Holman’s fundamental constitutional right.” He then cites to State v. Atkinson, 276 Kan. 920, 927, 80 P.3d 1143 (2003), which dealt with a defendant’s right to confront witnesses under the Sixth Amendment and § 10 of the Kansas Constitution Bill of Rights. Thus, it appears that Holman is raising a violation of the Confrontation Clause.
Holman then presumes reversible error and does not brief or analyze whether the trial court’s limitation on questioning was simply harmless error. A point raised incidentally in a brief and not argued there is deemed abandoned. Cooke, 285 Kan. at 758. Holman’s cursory arguments convince us that any error in the trial court’s rulings was harmless.
As a general matter, T.M.A.’s pretrial meetings with the prosecutor and her preparations for trial testimony were appropriate subject matters for inquiry. Assuming the trial court’s specific lim itations were error, however, the essential question arises was the error harmless or reversible?
Because Holman claims a constitutional challenge to the admission of evidence, an appellate court applies the federal constitutional harmless error rule. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). That rule generally provides that an “error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” Ward, 292 Kan. 541, Syl. ¶ 6.
In the specific context of a Confrontation Clause issue which is subject to analysis under the above-stated federal harmless error rule, appellate courts have a specific guideline to follow:
“The correct inquiry is whether, assuming that the damaging potential of the cross-examination was fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in tire prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting tire testimony of tire witness on material points, and, of course, the overall strength of the prosecution’s case.” State v. Nguyen, 281 Kan. 702, Syl. ¶ 6, 133 P.3d 1259 (2006).
Applying these standards to the facts of this case convinces us that any error by the trial court was harmless.
T.M.A.’s testimony was important because she was the complaining witness against Holman. Her credibility was critical to the State’s case, and Holman’s ability to impair her credibility was essential to his defense. Two of the three questions asked by defense counsel and not allowed by the trial court sought out-of-court oral statements made by the prosecutor to T.M.A. On the other hand, the trial court permitted defense counsel to inquire into the purpose and conduct of T.M.A.’s pretrial meetings with the prosecutor. As a result of this cross-examination, the jury was advised that T.M.A. and the prosecutor had met shortly before trial, they had discussed T.M.A.’s molestation allegations, in particular the inter view she gave to Detective Story, and they also had jointly reviewed transcripts of T.M.A.’s pretrial statements about the incidents. In regard to the transcripts, the jury was also informed:
“Q. [Holman’s Attorney:] Okay. So going over those transcripts, do you think that is helping you remember to say the same thing you said before?
“A. Yes.
“Q. Okay. You don’t want to get—you don’t want to say something today that you didn’t say before?
“A. No.”
Defense counsel then reviewed each molestation allegation with T.M.A., comparing and contrasting her testimony at the preliminary hearing with her trial testimony in an effort to impeach her credibility. In this way, the jury was able to evaluate T.M.A.’s credibility and determine if she was unduly influenced by the prosecutor in presenting her testimony.
Moreover, as discussed earlier, T.M.A. had told her sister, her grandmother, her mother, Detective Story, and her therapist about the molestation allegations. She also had testified at the preliminary hearing. Some of these pretrial statements were recorded, others were presented to die jury by the individuals who spoke with T.M.A. Regardless, the jury was fully capable of assessing T.M.A.’s credibility by comparing and contrasting the various pretrial molestation accounts.
In sum, having reviewed the relevant factors set forth in Nguyen, 281 Kan. 702, Syl. ¶ 6, including the overall strength of the State’s case, we conclude beyond a reasonable doubt that any error did not affect the outcome of the trial in light of the entire record, i.e., there was no reasonable possibility that the error contributed to the verdict. See Ward, 292 Kan. 541, Syl. ¶ 6.
Amendment of the Second Amended Information
Next, Holman contends the trial court erred in granting the State’s motion to amend Count II of the second amended information after the defense rested its case. This amendment expanded the time frame for the commission of the first alleged aggravated indecent liberties with a child offense a total of 18 days—-from April 8, 2006, to May 25, 2006, rather than April 1, 2006, to April 30, 2006.
Holman argues the amendment was improper because he relied on the shorter time frame and submitted evidence of his work schedule and records tending to show he was working during the month of April 2006. As a result, Holman asserted he was frequently not at home during the time period when the offenses were allegedly committed. The State contends the trial court did not abuse its discretion in allowing the amendment pursuant to K.S.A. 22-3201(e) because the amendment did not charge an additional crime or prejudice the substantial rights of the defendant.
In the district court, at the conclusion of Holman s case-in-chief the State moved “to amend the dates of the charges to conform with the evidence . . . admitted.” Holman objected, claiming the defense had “detrimentally relied upon the time frames” in developing its defense. The State countered that the molestation incidents were well known to the defense and in child sex abuse cases “it is so difficult for a child to place a precise day, date, hour, minute” on when a particular molestation occurred. On appeal, Holman only raises error with regard to Count II. As a result, any claimed errors with regard to the other counts are waived and abandoned. See McCaslin, 291 Kan. at 709.
Whether the amendment allowed by the court violated K.S.A. 22-3201(e) is reviewed for an abuse of discretion. See State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). “Discretion is abused only when no reasonable person would take the view adopted by the district court. The defendant bears the burden of establishing such an abuse of discretion.” 281 Kan. at 205 (citing State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 [2003]).
K.S.A. 22-3201(e) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” (Emphasis added.) See State v. Ransom, 288 Kan. 697, 715-16, 207 P.3d 208 (2009); State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996). Because the amendment in the present case did not cause an additional or dif ferent crime to be charged, the only issue for review is whether the expanded time period prejudiced Holman.
A review of Kansas caselaw shows that certain factors are important to consider in the determination of whether the defendant was prejudiced by tire amendment. For example, in State v. Ferguson, 221 Kan. 103, 105-06, 558 P.2d 1092 (1976), this court upheld the amendment because “the fact the dates were amended to conform with the evidence is not prejudicial. It was not a critical issue. No statute of limitations was involved. Alibi was not a defense to make dates important. Time was not an element of the offense.” See also State v. Van Cleave, 239 Kan. 117, 121, 716 P.2d 580 (1986) (allowing amendment because no alibi defense was asserted and the date of the offense was not material to any defense; no prejudice was shown). In particular, with regard to the charge of indecent liberties with a child, this court has specifically held that “[t]ime is not an indispensable ingredient.” State v. Nunn, 244 Kan. 207, 227, 768 P.2d 268 (1989) (citing State v. Sisson, 217 Kan. 475, Syl. ¶ 2, 536 P.2d 1369 [1975]). Finally, this court has noted “ It is not unusual for uncertainty as to dates to appear particularly where the memories of children are involved.’ ” Nunn, 244 Kan. at 227.
Holman has failed to show prejudice of his substantial rights. At the outset, T.M.A. was only 8 years old when the molestation she alleged occurred and 10 years old at the time of her trial testimony. In her pretrial statements and testimony, she generally spoke of the offense in terms of seasons, stating that the offense occurred when it was both hot and cold outside. T.M.A.’s therapist testified that T.M.A. struggled with concepts of time and with remembering the dates of the incidents. There was also evidence that this first incident of molestation occurred during the spring of 2006. Given T.M.A.’s pretrial statements, preliminary hearing testimony, and direct and cross-examination testimony, Holman was aware that the date of this offense was uncertain. Given this uncertainty, the 18 days added to the original 30-day period in the charging document should not have surprised Holman or compromised his defense. Moreover, this was not a situation that implicated the statute of limitations or adversely impacted an alibi defense. Accordingly, we find no error in this particular amendment.
Finally, we observe that the better practice is for the State to amend the charging document to conform to the trial evidence at the close of its case-in-chief, whenever possible, rather than at the close of the defendant’s case-in-chief, to afford the defense an opportunity to address the amendment in their presentation of evidence without resort to a recess or continuance of the trial, if necessary.
Multiplicity
Holman contends his convictions for aggravated indecent liberties with a child as charged in Counts IV and V are multiplicitous. These counts related to the incident that occurred while Holman and T.M.A. were watching the movie “Saw” at home during the spring of 2007. With regard to Count IV, T.M.A. testified that during the movie Holman “took my hand and put my hand inside of his pants.” Holman then had T.M.A. move her fingers back and forth on his penis. With regard to Count V, T.M.A. testified that Holman “put a blanket over his hand and then put it inside my pants.” A.A. testified these two sexual touchings occurred at the same time. Holman was convicted of both counts.
Questions involving multiplicity and statutory interpretation are questions of law subject to unlimited appellate review. Sellers, 292 Kan. at 127-28.
Multiplicity is the charging of a single offense in several counts of a complaint or information. The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the Constitution of the United States and § 10 of the Kansas Constitution Bill of Rights. See State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009).
In State v. Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006), fliis court established an analytical framework for determining whether multiple convictions subject a defendant to double jeopardy. The overarching inquiry is whether the convictions are for the same offense. This inquiry is divided into two components, both of which must be met for there to be a double jeopardy violation: First, do the convictions arise from the same conduct? Second, if so, by statutoiy definition, are there two offenses or only one? 281 Kan. at 496.
The first component of the multiplicity inquiry requires the court to consider whether the conduct is discrete or unitary. If the conduct is discrete, the convictions do not arise from the same offense and there is no double jeopardy violation. But if the charges arose from the same act or transaction, then the conduct is considered unitary and the court moves to the second component of the inquiry. 281 Kan. at 496.
The court considers the following factors to determine if the convictions arose from the same conduct:
“[S]ome factors to be considéred in determining if conduct is unitary, in other words if it is tire ‘same conduct,’ include: (1) whether the 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 diere was an intervening event; and (4) whether diere is a fresh impulse motivating some of die conduct.” 281 Kan. at 497.
A review of the trial evidence persuades us that the sexual touching Holman had T.M.A. perform on him occurred at or about the same time Holman sexually touched T.M.A. These two sexual touchings also occurred at the same location, and there was no indication of a fresh act or intervening event between the touchings. On appeal, the State concedes the sexual touchings were unitary conduct because they occurred “simultaneously.” We agree. Having considered the Schoonover factors, we conclude the two touchings constituted one unitaiy act or transaction.
Applying the second component of the Schoonover analysis, we note that because Holman’s convictions in Counts IV and V arose from the same statute, K.S.A. 21-3504(a)(3)(A), we next apply the unit of prosecution test.
“If die double jeopardy issue arises because of convictions on multiple counts for violations of a single statute, the test is: How lias the legislature defined die scope of conduct which will comprise one violation of the statute? Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution. The unit of prosecution test applies under either tire Double Jeopardy Clause of the Fifth Amendment or § 10 of the Kansas Constitution Bill of Rights.” Schoonover, 281 Kan. at 497-98.
Holman was convicted of aggravated indecent liberties under K.S.A. 21-3504(a)(3)(A). K.S.A. 21-3504(a)(3) prohibits:
“(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy tire sexual desires of either the child or the offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.” (Emphasis added.)
Subsequent to briefing and oral argument in the present case, this court resolved tire legal issue of what constitutes an allowable unit of prosecution as it relates to this specific statute. State v. Sprung, 294 Kan. 300, 277 P.3d 1100 (2012). In Sprung, this court stated that “[t]he determination of the allowable unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Instead, the key consideration is the scope of the course of conduct proscribed by the statute.” 294 Kan. 300, Syl. ¶ 8. This court then determined:
“K.S.A. 21-3504(a)(3)(A) creates only a single unit of prosecution. Had the legislature intended to create one unit of prosecution when tire offender touches the child and a separate unit of prosecution when the child touches tire offender, the legislature could have separated subsection (A) into two subsections, i.e., one subsection proscribing any lewd foundling or touching of a child by tire offender and one subsection proscribing any lewd fondling or touching of the offender by tire child. Instead, the legislature defined aggravated indecent liberties as ‘engaging in any of the following acts,’ and then provided only two defining subsections, (A) and (B). [Citations omitted.]” 294 Kan. at 310.
Moreover, this court noted that K.S.A. 21-3504(a)(3)(A) set forth “a unifying intent—⅛ arouse or to satisfy the sexual desires’—with the object of that intent being the child, the offender, or both.” 294 Kan. at 310. Finally, assuming the legislature’s intent in drafting this legislation was unclear regarding the unit of prosecution, this court concluded “the rule of lenity would mandate that we construe the statute in favor of the defendant.” 294 Kan. at 310-11.
In the present case, the jury convicted Holman of the unitary conduct of lewd touching of T.M.A. and causing T.M.A. to lewdly touch him. Given that K.S.A. 21-3504(a)(3)(A) creates a single unit of prosecution for this conduct, we hold that Holman’s convictions for aggravated indecent liberties with a child in Counts IV and V are multiplicitous. Accordingly, we affirm Holman’s conviction under Count IV, reverse his conviction under Count V, and vacate the sentence imposed in Count V.
Claims Pertaining to Holman’s Age
Holman asserts two related claims of error regarding his convictions of aggravated indecent liberties with a child in Counts IV and V. The basis for Holman’s claims are that the State was required to plead and prove that he was 18 years of age or older as an element of the crimes charged under K.S.A. 21-3504(a)(3)(A) and (c) and for his sentence under K.S.A. 21-4643(a)(l)(C), commonly known as Jessica’s Law.
Upon his conviction on Count II, Holman was sentenced under the KSGA to 59 months’ imprisonment based upon a severity level 3 person felony. Upon his convictions on Counts IV and V, however, Holman was sentenced under K.S.A. 21-4643(a)(l)(C) to life imprisonment with a mandatory minimum sentence of 25 years on each count. Because this court has reversed Holman’s conviction under Count V and vacated the sentence, we are only concerned ■with Holman’s claims as they relate to Count IV.
First, Holman alleges the State’s failure to list his age in the second amended information deprived the trial court of jurisdiction to convict and sentence him to life in prison under K.S.A. 21-4643(a)(1)(C). Second, he asserts the trial court’s failure to instruct the jury that it must find he was 18 years of age or older at the time of the commission of the crimes violated his rights under the Sixth Amendment to the Constitution of the United States.
Issues impheating subject matter jurisdiction and statutory and constitutional interpretation are subject to unlimited review by an appellate court. State v. Martinez, 290 Kan. 992, 1017, 236 P.3d 481 (2010).
In State v. Gonzalez, 289 Kan. 351, 366, 212 P.3d 215 (2009), under a factual scenario similar to the present case, this court held that a defendant who challenged the sufficiency of a charging document for the first time on appeal must establish the alleged defect either prejudiced the defendant’s preparation of a defense, impaired the defendant’s ability to plead the conviction in a later prosecution, or limited the defendant’s substantial rights to a fair trial. 289 Kan. at 368.
On appeal, the State concedes the second amended information did not “expressly allege that defendant was eighteen years of age or older.” The second amended information did indicate, however, that Holman was being charged with an off-grid person felony, and his year of birth was stated on the first page of the charging document.
For his part, in the district court Holman did not object to any defect in the second amended information. On appeal, he also makes no showing of prejudice to his defense, impairment of his ability to plead the conviction in a later prosecution, or limitation upon his substantia] rights to a fair trial. See 289 Kan. at 368. We find, under tire circumstances, that Holman was adequately informed of the charge in Count IV and the possible penally of life imprisonment. Accordingly, we hold that any deficiency in the charging document did not invalidate Holman’s conviction on, or sentence for, Count IV, and we affirm his conviction.
For his second claim, Holman contends the failure of the trial court to instruct on his age and the State’s failure to prove to the jury that he was 18 years of age or older at the time of the commission of tire offense—a necessary fact to be established under the special sentencing provision of K.S.A. 21-4643(a)(l)(C)—in-validates his enhanced sentence. This argument is predicated on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
On appeal, the State concedes Holman’s age was “not mentioned in the jury instructions listing the elements of his offenses.” Moreover, the State does not controvert Holman’s assertion that it failed to provide evidence at trial upon which a rational factfinder could conclude Holman was 18 years of age or older.
In Martinez, this court reviewed a series of cases wherein the same legal argument was raised under very similar factual situations:
“The second challenge relates to the district court’s failure to instruct the jury to determine whether Martinez was 18 years of age or older at the time of the offense. This issue arises from recent decisions involving Jessica’s Law in which we held the failure to allege and instruct on die defendant’s age was error under Apprendi. See State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009); [State v.] Gonzales, 289 Kan. [351,] 371[, 212 P.3d 215 (2009)]; [State v.] Bello, 289 Kan. [191,] 199-200[, 211 P.3d 139 (2009)]. In those cases, die record contained no evidence on which a jury could have based a finding about the defendant’s age, even if the jury was properly instructed. Accordingly, we remanded die cases to the district court for resentencing under die [KSGA], rather than under the off-grid sentencing provisions required by Jessica’s Law. . . .
“But more recently in State v. Reyna, 290 Kan. 667, 234 P.3d 761 (2010), we considered whether the failure to instruct the jury on this element of the crime was harmless when the trial record contained evidence of the defendant’s age that would have permitted the jury to make die appropriate finding, if properly instructed to do so. In Reyna, we concluded that a harmless error analysis was applicable. 290 Kan. at 682.” Martinez, 290 Kan. at 1018-19.
See State v. Brown, 291 Kan. 646, 662-64, 244 P.3d 267 (2011).
Given the State’s concessions and our independent review of the trial record, we conclude the failure to provide the jury with an appropriate instruction and the failure to prove beyond a reasonable doubt to the jury that Holman was 18 years of age or older at the time of the commission of the offense charged in Count IV was not harmless error. Accordingly, the off-grid sentence imposed on Holman under K.S.A. 21-4623(a)(l)(C) is vacated, and the case is remanded for resentencing on Count IV for severity level 3 felony on the KSGA nondrug sentencing grid.
Affirmed in part, reversed in part, vacated in part, and remanded with directions to resentence the defendant on Count IV.
Buser, J., assigned.
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The opinion of the court was delivered by
Biles, J.:
Michael Phillips directly appeals his convictions for first-degree felony murder, two counts of attempted aggravated robbeiy, and criminal possession of a firearm. His convictions stem from the shooting death of Miguel Moya, who Phillips said rushed at him unarmed during a scuffle. Phillips shot Moya after robbing two people at gunpoint at the same house. Phillips challenges: (1) the district court’s failure to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter and on self-defense; (2) the State’s failure to establish Moya’s murder was committed during the commission of the underlying felonies; (3) alleged misstatements about the law during the State’s closing argument; (4) the admission of evidence showing Phillips fled from police officers at an unrelated traffic stop and his use of an alias; and (5) his sentence imposing lifetime postrelease supervision. We affirm Phillips’ convictions, but we vacate the lifetime postrelease supervision part of his sentence.
Factual and Procedural Background
Moya was shot and killed inside a Wichita home shortly before 7 a.m. on November, 19, 2007, after a late night out with friends. According to the doctor who performed Moya’s autopsy, the shot that killed him traveled downward inside his body while he was in a “recumbent” position or otherwise bending over in some way.
Police were led to Phillips after learning he may have called the house numerous times before the shooting. An arrest warrant was issued, but Phillips was not found until about 8 months later during a routine traffic stop. Phillips fled from police at the scene and once apprehended falsely told officers his name was Eric Brown.
During his interview with an investigating detective, Phillips explained that on the evening of November 18 he had planned on robbing another house. He admitted that he was carrying a gun with a potato silencer at the end of it. When that plan fell through, Phillips said he dropped off Tiffany Berry at Aaron Hardgraves’ house (where Moya was shot), left to get ready to leave town, and eventually returned to the house to retrieve money Hardgraves owed him.
Phillips said that when he arrived at the house, he head-butted Hardgraves, who answered the door, and retrieved his money. Phillips said he did not take money from anyone else, though this claim was contradicted by Jose Blanco, who testified at trial that Phillips put a gun to his head and grabbed $450 out of his pocket.
After getting the money from Hardgraves, Phillips said he heard gunshots from another part of the house. He believed Berry, the woman he dropped off at the house earlier, either fired the shots or was being shot at, so he went looking for her. Phillips said he saw Berry and Moya together. He and Moya began pushing and shoving each other before Moya grabbed and rushed at him. Phillips said he started shooting at Moya, and continued shooting as he backed up to leave the house. In response to questioning by police regarding why he fired the gun at Moya, Phillips said, “I don’t know, the dude kind of grabbed me, I probably shot him like three times maybe.” Phillips said he was not trying to kill Moya and did not know where he was aiming. Phillips also said, “It could have been me getting shot at.” But Phillips admitted he did not see Moya with a weapon.
No gun was ever found on Moya or in the house. Phillips said he later sold the weapon he used after the shooting. Investigators collected from the house a piece of potato, as well as gun casings.
Another eyewitness, Juan Lopez, testified at trial that he saw Moya get into a physical altercation with Berry, who shot a gun into a door Moya hid behind. As the two struggled, Lopez said Phillips appeared and then Lopez heard Berry say the “Mexicans [were] going to die.” Lopez said Moya began angrily rushing at Phillips and Berry when the two both began shooting at him. Lopez said he did not see Moya with a weapon.
Hardgraves also testified at trial. He said someone called the house asking for Beriy four or five times during the night before the shooting. The Caller ID displayed the caller as “Michael Brown.” But Hardgraves testified that he believed Phillips was the caller because of what occurred later. Hardgraves testified that he did not overhear Berry’s conversation or know the duration of those calls, but “Michael Brown” did not call again once Phillips arrived at tire house.
Hardgraves also testified that he knew Phillips because he had installed a CD player in Phillips’ car, which he recalled was a red Buick Century. During the investigation, officers learned that Phillips drove a red Buick and that he left it parked outside Hardgraves’ house.
Hardgraves said when Phillips arrived, Phillips head-butted him and put a revolver with a potato on the end of it to his head. He said Phillips did not say anything but reached into Hardgraves’ pants pocket and took $40 cash. The next thing Hardgraves recalled was hearing shots fired, seeing Berry with a gun, and Moya coming towards Phillips. Moya stopped within a foot of Phillips before being shot by him. Hardgraves said there was no delay between the time Moya was rushing Phillips and the shots being fired. Hard-graves said Moya never made physical contact with Phillips and &at Phillips was trying to leave as Moya was coming towards him by backing up each time he was shooting. Phillips eventually left through the front door with Berry. As he was leaving the house to get help for Moya, Hardgraves recalled seeing a red Buick Century parked in front of the house after Phillips left and said it was the car in which he had previously installed a CD player.
A jury convicted Phillips of first-degree felony murder, two counts of aggravated robbery, and criminal possession of a firearm. He was sentenced to life in prison, with a mandatoiy minimum of 20 years and lifetime postrelease supervision for felony murder; a consecutive 47 months for one attempted aggravated robbery conviction; a consecutive 34 months on the other attempted aggravated robbery conviction; and a concurrent 9 months for criminal possession of a firearm. Our jurisdiction is proper under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).
Phillips raises five issues on appeal: (1) The district court erred by not instructing tire jury on the lesser included offenses of second-degree murder and voluntary manslaughter and on self-defense; (2) the State failed to establish Moya’s murder was committed during the commission of the underlying felonies; (3) the State committed prosecutorial misconduct during closing argument when it allegedly misstated the law; (4) the district court erred in admitting evidence showing Phillips fled from officers at an unrelated traffic stop and used an alias; and (5) his sentence imposing lifetime postrelease supervision is illegal. We decide all issues against Phillips except his sentencing argument. Additional facts will be provided as necessary.
Jury Instructions
Our initial inquiry is whether the district court erred in not instructing the juiy on the lesser included offenses of second-degree murder and voluntary manslaughter, and on self-defense. At the time Phillips shot Moya, the statute governing lesser included offenses, K.S.A. 21-3107, treated felony murder the same as other offenses. Thus, under K.S.A. 22-3414(3) lesser included offense instructions were to be issued if there was some evidence that would reasonably justify the conviction of tire lesser included crime. State v. Berry, 292 Kan. 493, 513, 254 P.3d 1276 (2011) (overruling prior caselaw that exempted felony murder from K.S.A. 22-3414(3)’s requirements). But after Phillips was convicted, K.S.A. 21-3107 was amended to specify there are no lesser degrees of felony murder. See K.S.A. 2011 Supp. 21-5109(b)(l), as amended by L. 2012, ch. 157, sec. 2 (A lesser included crime is “[a] lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection [a] [2] [felony murder] of K.S.A. 2011 Supp. 21-5402.”). No claim is made that this revision impacts the present analysis.
Standard of Review
Phillips argues that when reviewing a trial court’s decision not to instruct the jury on lesser included offenses, this court must review the evidence in the light most favorable to the requesting party, citing State v. Bell, 276 Kan. 785, 792, 80 P.3d 367 (2003). But this standard applies only when an instruction was requested at trial or objected to. K.S.A. 22-3414(3). And that is not what happened in this case.
Phillips was alternatively charged with premeditated first-degree murder and felony murder for Moya’s death. During the instructions conference, the State reluctantly acquiesced to Phillips’ request to include second-degree intentional murder and voluntary manslaughter instructions as lesser included offenses for the first-degree premeditated murder charge. But following a brief recess, the State dismissed the first-degree premeditated murder charge and asked that the lesser included offense and self-defense instructions be deleted. The court agreed and presented counsel with a revised set of instructions, which did not include the lesser included offense and self-defense instructions.
Phillips’ counsel did not object to the revisions except to claim that dismissal of the first-degree premeditated murder charge was prejudicial to the manner in which the defense had presented its case to the juiy. That objection was overruled, and the court dismissed that charge.
The parties then began considering the court’s proposed instructions. Defense counsel made no argument that lesser included offense instructions to felony murder should be added to those proposed instructions. And then at the conclusion of the conference, the district court made an instruction-by-instruction, itemized record of any objections to the final instructions the court proposed to give. Again, Phillips’ counsel did not object, request lesser included offense or self-defense instructions, or make any argument that evidence of tire underlying felony was weak.
In his appellate arguments, Phillips mischaracterizes what happened at the instructions conference as the district court’s refusal to instruct the jury on lesser included offenses supported by the evidence. In fact, the district court was not asked to give those instructions after the State dismissed the premeditated first-degree murder charge. Thus, there was no objection to the instructions as they were proposed by the court.
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 juiy instruction, including a lesser included crime instruction, unless: (1) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court. State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
If the reviewing court determines the district court erred in giving or failing to give an instruction, then the clearly erroneous analysis moves to a reversibility inquiry, during which the court assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction error not occurred. The party claiming the instructional error has the burden to establish the degree of prejudice necessary for reversal. Williams, 295 Kan. 506, Syl. ¶ 5.
Phillips makes no alternative argument that the jury would have reached a different verdict had the claimed instruction error not occurred. He relies only on a standard of review to which he is not entitled. The State argues for application of the clearly erroneous scrutiny as stated in our previous caselaw.
We will employ the analysis recently set out by this court in Williams for K.S.A. 22-3414(3) questions. The first step is to determine whether error occurred in the giving or failure to give an instruction. This is a question of law subject to unlimited appellate review. Williams, 295 Kan. at 516. And it is only after determining that the district court erred that we move to the second step and determine whether reversal is required, i.e., whether we are firmly convinced that the jury would have reached a different verdict had tire instruction error not occurred. This involves a review of the entire record and is a de novo determination. The burden to show clear error under K.S.A. 22-3413(3) remains on defendant. Williams, 295 Kan. at 516.
Second-degree Murder Instruction
We begin with Phillips’ assertion that the jury should have been instructed on second-degree murder. Second-degree murder is the “killing of a human being committed: (a) [i]ntentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 21-3402. On appeal, Philips does not specify whether he was entitled to an instruction on intentional second-degree murder, reckless second-degree murder, or both. Since Phillips claims the issue was preserved and second-degree intentional murder was the focus at the instructions conference before the premeditated murder charge was dismissed, we will focus our analysis there.
Second-degree intentional murder is different from first-degree intentional murder because it lacks the element of premeditation. State v. Clark, 261 Kan. 460, 467, 931 P.2d 664 (1997). Premeditation means to have “planned, contrived, schemed, and thought over the matter beforehand, although no particular amount of time must intervene between the time the killing is planned and the time it is consummated.” State v. Pabst, 268 Kan. 501, 512, 996 P.2d 321 (2000) (premeditation inferred where no evidence of provocation, struggle over a gun, and when second shot fired after the first killed the victim, who was sitting down). But premeditation does not occur instantly. State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007).
Phillips’ sole argument is premised on the claim that the district court should have permitted a second-degree intentional murder instruction because it had ruled earlier in the instruction conference that there was sufficient evidence to support that lesser included offense instruction for the premeditated murder charge. But the district court did not make specific findings on second-degree intentional murder. The transcript from the instructions conference shows only that a discussion was held after the court ruled that it would give the self-defense instruction, and the State then reluctantly conceded that a second-degree intentional murder instruction should be given in light of that ruling. After the State’s concession, the court replied by saying, “Okay,” and moved to another issue. At tire end of that preliminary instructions conference, the court indicated it would recess to give the parties more time to discuss some disputed issues and that the court would begin to prepare its proposed final instructions.
This was not a ruling on tire merits about giving a second-degree intentional murder instruction, or even whether the evidence supported that instruction, because the court’s instructions had not yet been prepared. In addition, the district court made clear during the instructions conference that it could still change its proposed final instructions based upon the parties’ arguments.
More importantly, Phillips does not argue that the record demonstrated there was evidence that a second-degree murder instruction was warranted or that such evidence should firmly convince an appellate court that the jury would have returned a different verdict had it been instructed on it. In other words, Phillips makes no effort to satisfy his burden to show clear error as required by K.S.A. 22-3414(3). See Williams, 295 Kan. at 516. An appellant waives issues that are not briefed. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Voluntary Manslaughter Instruction
Phillips next claims the district court erred by not instructing the juiy on voluntary manslaughter. Voluntary manslaughter is the “intentional killing of a human being committed (a) upon a sudden quarrel or in tire heat of passion; or (b) upon an unreasonable but honest beliéf that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” K.S.A. 21-3403. Arguments championing a voluntary manslaughter instruction have been denied by this court because tire defendant failed to show evidence of an honest belief his or her actions were in self-defense. See, e.g., State v. Herron, 286 Kan. 959, 969-70, 189 P.3d 1173 (2008) (Even though it was known victim was armed, there was no evidence victim fired first shot or evidence to show defendant or anyone else believed lethal force was necessary.).
Once again, Phillips does not argue that the record demonstrated there was any specific evidence establishing that a voluntary manslaughter instruction was warranted or that such evidence should firmly convince an appellate court that the jury would have returned a different verdict had it been instructed on voluntary manslaughter. Again, this amounts to a failure by Phillips to meet the burden imposed by K.S.A. 22-3414(3) and a waiver of the arguments.
Self-defense Instruction
Phillips’ last claimed error regarding jury instructions concerns the district court’s failure to instruct on self-defense. Our analysis again is controlled by K.S.A. 22-3414(3).
“A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.” K.S.A. 21-3211(a). Self-defense based on justification or excuse and operates as a complete defense to a crime, and requires both an objective and subjective analysis. State v. Cook, 286 Kan. 1098, 1105, 191 P.3d 294 (2008); State v. Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008). The use of deadly force can only be justified when a person in the same circumstances would reasonably believe that the use of deadly force was necessary. K.S.A. 21-3211(b).
But self-defense does not apply to all defendants. K.S.A. 21-3214(1) provides that self-defense is not available to a person who “[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.” A “forcible felony” includes “any . . . felony which involves the use or threat of physical force or violence against any person.” K.S.A. 21-3110(8) (enumerating some forcible felonies, including murder and robbery); see also Kirkpatrick, 286 Kan. at 335-36 (discussing unavailability of instruction for defendant who committed forcible felony); State v. Ackward, 281 Kan. 2, 26, 128 P.3d 382 (2006) (no error when jury instructed on felony- murder charge that a person is not justified in using force in self-defense when attempting to commit a forcible felony).
Phillips was charged with committing aggravated robbery—a forcible felony. See K.S.A. 21-3110(8). Thus, a self-defense instruction was not applicable to the facts in this case. We hold the district court did not err in omitting a self-defense instruction.
Sufficiency of Evidence
Phillips was charged with felony murder based on tire aggravated robberies of Hardgraves and Blanco. He argues there was insufficient evidence to uphold the felony-murder conviction because the State failed to prove beyond a reasonable doubt that he tolled Moya during the commission of an attempted aggravated robbeiy. He argues the underlying felonies were complete once he took the money from Hardgraves and Blanco and that the “commission of’ those crimes for the purposes of felony murder terminated before the shooting occurred. The State relies on this court’s decision in State v. Kaesontae, 260 Kan. 386, 920 P.2d 959 (1996), to argue the risk of violence remained after Phillips robbed the two men and so there was not a sufficient break in the chain of events to constitute a termination of the aggravated robberies.
Standard of Review
When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found tire defendant guilty beyond a reasonable doubt. McCaslin, 291 Kan. at 710.
Discussion
The felony-murder statute requires two elements of causation. First, the death must occur within the res gestae of the underlying felony. Second, there must be a direct causal connection between tire felony and the homicide. Res gestae refers to acts that occurred “ ‘before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.’ ” Berry, 292 Kan. at 498. A direct causal connection exists unless an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death.
There are three factors examined in determining whether a direct causal connection is present: time, distance, and the causal relationship between the underlying felony and the killing. Berry, 292 Kan. at 500. This court rejected the defendant’s insufficiency of the evidence argument in Berry after finding the three factors were satisfied. The time factor was satisfied because the defendant had cocaine in his possession when the fatal vehicle crash occurred, file distance factor was satisfied because the possession and the crash occurred at the same location, and the causal relationship factor was satisfied because it was foreseeable that a person possessing drugs would attempt to flee from police. Berry, 292 Kan. at 501.
As noted by the State, Kaesontae is pertinent. In that case, the defendant along with several acquaintances took two cars to rob someone. The victim, who was walking outside, was stopped by the lead car from which the defendant pointed a gun at him and asked for his wallet. The victim was pulled hallway into the vehicle and shot twice. This court found that the chain of events set in motion by the defendant when he attempted to rob the victim continued even after the defendant stopped trying to rob him. The court found the killing and the underlying felony were part of the same principal occurrence, even though they did not occur at precisely tire same time. It applied the time, distance, and causal relationship factors and concluded the victim’s killing was part of the attempted aggravated robbery. Kaesontae, 260 Kan. at 391; see also State v. Branch and Bussey, 223 Kan. 381, 383, 573 P.2d 1041 (1979) (“A felon’s attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon [as these robbers did] and forces his way into an occupied dwelling.”).
The underlying felony in this case was aggravated robbery. As stated above, aggravated robbery is the taking of property from the person or presence of another by threat of bodily harm to any person or by force, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3426; K.S.A. 21-3427. The two causation elements are satisfied in this case.
The res gestae element is satisfied because Moya’s murder occurred immediately after the happening of the principal occurrence—aggravated robbery—and thus became so closely connected with the principal occurrence as to form a part of the occurrence. A direct causal connection is also present. The time element is met because there was evidence the events happened quickly and that Phillips moved from his aggravated robbery of Blanco immediately to the bedroom where Berry struggled with Moya. The distance factor is satisfied because the aggravated robberies of Hardgraves and Blanco occurred in the same house where Moya was shot. Lastly, the causal relation is also satisfied because it is foreseeable that violence will erupt during an aggravated robbery in which the robber carries a gun.
The very nature of an aggravated robbery is violent. Moreover, Phillips stuck a potato on the end of his gun, indicating his preparation to silently shoot the gun. And as the Branch court similarly put it, Phillips set off a chain of violent events when he planned on robbing a house and brought a gun in furtherance of that plan. The elements of time, distance, and causal relationship were met. Accordingly, the evidence, when viewed in a light most favorable to the prosecution, was sufficient to establish beyond a reasonable doubt that the murder occurred during the res gestae of the aggravated robberies.
Prosecutorial Misconduct
Phillips next argues that during closing arguments the prosecutor committed reversible misconduct and violated his right to a fair trial by misstating the law regarding when the aggravated robberies were completed. Phillips argues these errors “tainted the verdict” for the felony-murder charge, requiring reversal. Phillips did not object at trial, but he was not required to contemporaneously object to preserve his prosecutorial misconduct claim because com ments made during closing argument are not evidence. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Standard of Review
This court employs a familiar two-step analysis when considering claims of prosecutorial misconduct. In the first step, the court determines whether the prosecutor s statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. Second, the court determines whether the prosecutor s comments constituted plain error. Plain error occurs when the statements are so gross and flagrant that they prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McCullough, 293 Kan. 970, 985, 270 P.3d 1142 (2012).
The second step requires a harmlessness inquiry. Three factors are considered: (1) whether the misconduct was so gross and flagrant it denied the accused a fair trial; (2) whether the remarks showed ill will by the prosecutor; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor s statements would not have much weight in tire jurors’ minds. No individual factor controls. McCullough, 293 Kan. at 985 (citing State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 [2011]).
Did the Prosecutor Misstate the Law?
Phillips identifies three statements tire prosecutor made during closing arguments informing the jury that the aggravated robberies were not completed until Phillips left the house. He claims these statements violated his right to a fair trial. When addressing whether Phillips committed felony murder based on the underlying aggravated robberies, the prosecutor stated:
“The underlying crimes, the underlying aggravated robbery, the underlying attempted robbery, those are not completed, they are not over until at the very least the defendant leaves the house. The commission of those crimes is still going on while he is in that house. It doesn’t end with the taking of the money or the attempting to take the money."
“. . . The fact remains that this defendant went to the house, committed two aggravated robberies, and in the commission of those two robberies he kills, he murders Miguel Moya.” (Emphasis added.)
Later in rebuttal, the State said:
“Ladies and gentlemen, the crime is still going on, they have not exited this house, they have not left this house, the commission of this crime is not completed. There has been no withdrawal under die law. They have not taken any affirmative action to withdraw themselves from tiiis crime. And the lato says until they withdraw from the crime, the crime is not completed. So the crimes of aggravated robbery or attempted aggravated robbery aren’t completed until they are going out the front door.” (Emphasis added.)
Phillips claims these statements misled the juiy and incorrectly informed it that the aggravated robberies were not complete until Phillips withdrew by leaving the house. We agree that the prosecutor misstated the law on robbery to the extent she informed tire jury that the aggravated robberies were not completed until Phillips left the house.
Aggravated robbery is the taking of property from the person or presence of another by force or by threat of bodily harm, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm, upon any person in the course of such robbery. K.S.A. 21-3426; K.S.A. 21-3427. This court has previously held “commission of robbery is complete when the robber takes possession of [the] property.” State v. Valdez, 266 Kan. 774, 785, 977 P.2d 242 (1999), abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 (2003). Contrary to this rule, the prosecutor here claimed the crimes of aggravated robbery were not complete until Phillips left through the front door, even though Phillips had already taken possession of the money.
The State disputes that the prosecutor was referencing when the aggravated robberies were completed. It maintains the prosecutor’s statements were addressing whether the homicide occurred during the commission of the felonies. The State argues the statements were consistent with the legal principles regarding felony murder’s res gestae element, which as discussed above means acts “done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.” Berry, 292 Kan. at 498.
But the prosecutor narrowly framed her argument in closing, referring in rebuttal only to the completion of the aggravated robberies, and not contending that Phillips could still be in the “commission of’ the aggravated robberies for purposes of the felony-murder charge. The prosecutor’s argument provided more time for the completion of the aggravated robberies, and her remarks were a misstatement of that law. The aggravated robberies were complete once Phillips retrieved the $40 from Hardgraves and the $450 from Blanco.
Taken in context of the entire closing argument by the State, this misstatement seems to stem from the prosecutor’s mistaken belief that the aggravated robberies could not be completed in order for the murder to be committed “in the commission of’ the felonies. But as discussed above, this court examines whether the homicide occurred within the res gestae of the felonies and whether there was a direct causal connection when determining if the homicide was in the commission of tire felonies. Under that analysis, it is not necessarily relevant that the aggravated robberies were completed once Phillips took possession of the money.
The State’s misstatements of the law require us to address the second prong of the analysis before determining whether reversal is warranted. If the defendant establishes error of a constitutional magnitude, the State—as the benefiting party to the error—has the burden of proving beyond a reasonable doubt that the error did not affect the defendant’s substantial rights. State v. Anderson, 294 Kan. 450, 461-62, 276 P.3d 200 (2012) (citing State v. Hall, 292 Kan. 841, Syl. ¶ 15, 257 P.3d 272 (2011); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]), cert. denied 132 S. Ct. 1594 (2012).
In this case, the prosecutor’s misstatement that the aggravated robberies were not completed until the defendant left the house contradicts this court’s prior statements that a robbery is complete when the defendant takes the money. Thus, the statement may be considered gross and flagrant. See McCullough, 293 Kan. at 991 (The prosecutor’s statement that anger cannot constitute heat of passion contradicted repeated statements by this court and was thus considered gross and flagrant.). But there is no other indica tion in the record that the prosecutor’s misstatements constituted ill will. The statements were not overemphasized, they were not made in defiance of court rulings, and the prosecutor exhibited no other behavior suggesting ill will. In fact, it appears to stem from the prosecutor’s own misunderstanding of the law.
We further conclude that there is no reasonable possibility the misconduct affected the verdict. Phillips admitted to shooting Moya after confessing to at least one of the aggravated robberies— taking money out of Hardgraves’ pocket. Moreover, the jury was provided the correct instruction for felony murder:
“Michael E. Phillips is charged with the offense of murder in the first degree— felony murder. He pleads not guilty.
“To establish this charge, each of the following claims must be proved:
That Michael E. Phillips killed Miguel G. Moya;
That such felling was done while in the commission of an Aggravated Robbery, Attempted Aggravated Robbeiy, Robbery, or Attempted Robbery.
That this act occurred on or about the 19th day of November 2007 in Sedgwick, County, Kansas.”
This instruction, fashioned from PIK Crim. 3d 56.02 (felony-murder), properly instructed tire jury and fairly stated the law for the elements of die crime. See State v. Bailey, 292 Kan. 449, 456, 255 P.3d 19 (2011) (citing State v. Jackson, 280 Kan. 541, 550-51, 124 P.3d 460 [2005]). While we find misconduct, that misconduct was harmless. Phillips’ claim on this issue fails.
Admissibility of Flight and Alias Evidence
The State filed a pretrial motion to admit evidence of flight and alias, citing Phillips’ conversation with police in which he said he knew he had an outstanding arrest warrant for murder at the time he was pulled over 8 months after the shooting. The district court allowed the evidence to be admitted over Phillips’ numerous objections before and during trial. Now on appeal, Phillips argues the district court erred in admitting evidence that he ran from a traffic stop several months after the shooting and then provided a fake name to police.
Standard of Review
A trial court has discretion to admit evidence of flight. State v. Ross, 280 Kan. 878, 882, 127 P.3d 249, cert. denied 548 U.S. 912 (2006). It likewise has discretion to admit evidence of alias, so long as the evidence is relevant. Cf. State v. Higgenbotham, 264 Kan. 593, 603-04, 957 P.2d 416 (1998). A district court’s decision to admit the evidence is reviewed by an appellate court under an abuse of discretion standard. Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. McCullough, 293 Kan. at 980-81.
In reviewing a decision to admit evidence, appellate courts consider first whether the evidence is relevant. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish. Riojas, 288 Kan. at 383. If the court finds the evidence is relevant, the second step requires the court to apply the statutory rules governing the admission or exclusion of evidence. The court’s application of those rules is reviewed under an abuse of discretion standard. Riojas, 288 Kan. at 383.
Discussion
Evidence of a defendant’s flight or attempted flight may be relevant to show both the commission of the acts charged and the intent and purpose for which those acts were committed. State v. Walker, 226 Kan. 20, 21-22, 595 P.2d 1098 (1979); State v. Townsend, 201 Kan. 122, 125, 439 P.2d 70 (1968) (flight following robbery may be considered as evidence); see also Ross, 280 Kan. at 885 (Kansas caselaw permits the admission of such evidence without restriction.).
We hold that the flight evidence was relevant. The facts are akin to Walker in that there was evidence the elusive defendant knew he was being sought by police. While such evidence of knowledge by the defendant is not required and merely goes to the weight of the evidence, once established it may certainly create a logical connection that the fleeing was a result of guilty consciousness. Walker, 226 Kan. at 25. Accordingly, evidence of Phillips’ flight from a traffic stop was relevant.
Moving to admissibility, the rules of evidence do not specifically address the admission of evidence regarding the defendant’s flight or attempted flight. See K.S.A. 60-401 et seq. Thus, the more general statute, K.S.A. 60-445, applies to the district court’s decision to admit or exclude such evidence, depending on whether its probative value is substantially outweighed by its prejudicial effect.
Evidence of flight after the commission of a crime is generally admissible regardless of the time or stage in the proceedings when the flight occurs. There is no requirement that flight must occur immediately after the commission of a crime. It may occur before filing formal charges, before arrest, after indictment, or after arrest. Direct proof that the accused had knowledge of his or her possible arrest is not necessary, particularly when there is evidence from which such fact may be inferred. Walker, 226 Kan. at 22.
In Walker, the defendant argued evidence of his flight was prejudicial to him and warranted a new trial. When officers arrived at the defendant’s house to question him 4 days after an aggravated robbery, Walker fled and eluded police for 3 months. On appeal, tire court held the evidence was admissible to show evidence of guilt, with no requirement of actual knowledge that defendant knew he was being sought by police. Such evidence merely goes to the weight of the evidence, particularly when the flight occurs soon after die crime. The court further noted greater caution might be given when the flight occurred months after a crime, but even then the evidence could be admitted for consideration by the jury, which might give it less weight given the time lapse. Walker, 226 Kan. at 24, see also Ross, 280 Kan. at 884-85 (proof defendant knew he was being sought not required); State v. Webber, 260 Kan. 263, 274, 918 P.2d 609 (1996) (admission of defendant’s flight to Louisiana under an assumed name, her use of a disguise, and her attempt to secure employment there was not abuse of discretion), cert. denied 519 U.S. 1090 (1997).
We hold that the evidence of Phillips’ flight from officers during tire traffic stop was not more prejudicial than probative and was admissible at trial. And even though Phillips told detectives he knew there was an arrest warrant out for him, this fact is not required to uphold the admission of flight evidence.
The admission of Phillips’ alias, Eric Brown, was similarly admissible to show Phillips’ behavior during the criminal investigation and was also relevant to demonstrate consciousness of guilt and identity. Under K.S.A. 60-445, the district court has broad discretion to determine admissibility based on relevancy and whether the probative value outweighs any prejudicial effect. State v. Preston, 294 Kan. 27, 32-33, 272 P.3d 1275 (2012). And evidence of use of an alias is relevant. In Higgenbotham, for example, the State introduced evidence that the defendant obtained an Arizona driver’s license under a different name some months after allegedly committing murder. This court held the admission of this evidence was not error because the defendant’s obtaining a fraudulent Arizona license was relevant to both the identity issue and his behavior during the criminal investigation. Higgenbotham, 264 Kan. at 604.
An alias tending to show Eric Brown was a name Phillips used was also material because it showed the possibility that it was Phillips who kept calling the house under the Caller ID “Michael Brown” to speak with Berry. Although the first names are different, the district court’s decision is reviewed for an abuse of discretion. On one hand some may argue tire alias suggests Phillips previously assumed the names Eric Brown and Michael Brown. On the other hand, there is an argument that because tire first names are different it is not the same person. The point remains that reasonable persons could differ as to tire meaning of this evidence and it is a jury question, so there was no abuse of discretion.
Lifetime Postrelease Supervision
Phillips next challenges the legality of the trial court’s imposition of lifetime postrelease supervision for the off-grid felony-murder conviction.
This court has previously decided this issue, concluding that “ ‘[a]n inmate who has received an off-grid indeterminate life sentence can leave prison only if the successor to the Kansas Parole Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence.’ ” State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 [2011]).
Phillips was sentenced to an off-grid crime after July 1, 1999, and the State concedes the trial court erred in sentencing Phillips to lifetime postrelease supervision rather than to a term with the possibility of parole. Accordingly, this portion of Phillips’ sentence is vacated.
Affirmed in part and vacated in part. | [
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The opinion of the court was delivered by
Herd, J.:
This case was originally before the Court in Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 699 P.2d 1002 (1985). There, we upheld the district court’s order affirming a Kansas Corporation Commission (KCC or Commission) order which amended paragraph (p) of the basic proration order for the Kansas Hugoton Gas Field. The appellants sought review of our decision in the United States Supreme Court, which remanded the case to this Court with directions to reconsider our decision in light of a recent Supreme Court decision, Transcontinental Pipe Line v. Oil & Gas Bd., 474 U.S. 409, 88 L. Ed. 2d 732, 106 S. Ct. 709 (1986) (Transco).
The facts were set out in some detail in our previous decision and need not be fully repeated here. However, we briefly summarize them for convenient reference.
K.S.A. 55-701 et seq. provides the KCC with authority to regulate the taking of natural gas from common sources of supply within the state in order to prevent the inequities or unfair taking of natural gas from a common source of supply. Acting pursuant to this authority, on March 21,1944, the Commission adopted the basic proration order for the Hugoton Field. The order provides limits or “allowables” for production for each well in the field. The allowables are assigned pursuant to a deliverability formula which balances various factors in an effort to regulate production to make the amount produced over time from any well equal to the amount of gas originally underlying the developed lease.
If a well produces .less than its allowable, it accrues an “underage,” the difference between its allowable and actual production. When a well is underproduced in relation to its allowable, its pressure rises and gas “drains” to the lower pressure areas of overproduced wells. When the larger allowable and underage is later produced, the well’s pressure drops and compensating drainage occurs. After the pressure drops, the adjusted deliverability is decreased, keeping the wells in balance in the “long pull.” 237 Kan. at 250-51.
Prior to 1983, cancelled underage could accumulate indefinitely and producers could postpone taking gas from wells indefinitely without an adverse regulatory effect. Because of these conditions, purchasers were using the Kansas portion of the Hugoton Field for “storage” and purchasing additional reserves elsewhere for immediate use. This forced the Kansas Hugoton Field production below good recovery practices and upset the dynamics of the Hugoton Field, affecting both proration and correlative rights.
Accordingly, in February of 1983, the KCC amended the basic proration order to provide that underages would be permanently cancelled if the producer did not reinstate them within a certain period of time or, if reinstated, the underage was not produced within five years.
Although numerous issues were raised in the initial appeal, the primary issue for our reconsideration upon remand is whether the Commission’s order improperly interferes with federal regulation of natural gas in interstate commerce. We originally resolved this issue by holding that federal regulation does not apply to the production or gathering of natural gas, citing Northern Gas Co. v. Kansas Comm’n., 372 U.S. 84, 9 L. Ed. 2d 601, 83 S. Ct. 646 (1963) (Northern Gas). We reasoned that rules on underages are part of production regulation and thus do not violate federal regulations. 237 Kan. at 267.
Before considering whether the United States Supreme Court’s decision in Transco requires us to change our original conclusions, let us examine the facts and holdings in both the Northern Gas and Transco cases.
Northern Gas
In Northern Gas, the United States Supreme Court set aside an order of the Kansas Corporation Commission requiring interstate gas pipelines purchasing gas from the Hugoton Field to take gas ratably from the wells to which they were connected.
The principal argument made by the Commission in Northern Gas was that the ratable take order, essential for the conservation of natural gas and conservation, is traditionally a function of state government.
The Supreme Court recognized that a significant distinction exists between conservation measures aimed directly at interstate purchasers and wholesales for resale, and those aimed at producers and production. The Court held that measures aimed at purchasers cannot be sustained when they threaten “the achievement of the comprehensive scheme of federal regulation.” 372 U.S. at 94.
The “comprehensive scheme of federal regulation” referred to by the Court was the Natural Gas Act (NGA), 15 U.S.C. § 717 et seq. (1982). In discussing this act, the Court held:
“The federal regulatory scheme leaves no room either for direct state regulation of the prices of interstate wholesales of natural gas (citation omitted) or for state regulations which would indirectly achieve the same result.” 372 U.S. at 91 (Emphasis added.).
The Court then concluded that the ratable take orders at issue in this case
“necessarily deal with matters which directly affect the ability of the Federal Power Commission to regulate comprehensively and effectively the transportation and sale of natural gas, and to achieve the uniformity of regulation which was an objective of the Natural Gas Act.” 372 U.S. at 91-92.
Transco
Fifteen years after the Supreme Court decided Northern Gas, Congress enacted the Natural Gas Policy Act of 1978 (NGPA), 15 U.S.C. § 3301 et seq. (1982), which vested regulatory power in the states over the wellhead sale of gas. One question before the Supreme Court in Transcontinental Pipe Line v. Oil & Gas Bd., 474 U.S. 409, was whether the NGPA effectively overruled Northern Gas.
The Mississippi regulation at issue in Transco required gas purchasers to purchase gas ratably without discrimination in favor of one producer against another in the same source of supply. Transco, an interstate pipeline company, appealed the State Oil and Gas Board (Board) ruling enforcing the regulation. The Circuit Court of Mississippi and the Mississippi Supreme Court affirmed, holding that the NGPA removed from the Federal Energy Regulatory Commission (FERC) the authority conferred on it by the NGA to regulate the sale and transportation in interstate commerce of “high cost” gas. The Mississippi court thus held that the NGPA effectively overruled Northern Gas.
On appeal, the United States Supreme Court reversed and held the Board’s order was preempted by the NGA and the NGPA.
In so holding, the Court first reviewed Northern Gas and noted the Court’s finding of preemption in that case rested upon two considerations:
“First, Congress had created a comprehensive regulatory scheme, and ratable-take orders fell within the limits of that scheme rather than within the category of regulatory questions reserved for the States. Second, in the absence of ratable-take requirements, purchasers would choose a different, and presumably less costly, purchasing pattern. By requiring pipelines to follow the more costly pattern, Kansas’ order conflicted with the federal interest in protecting consumers by ensuring low prices.” 88 L. Ed. 2d at 743.
Thus, under this two-part test, the Court first had to determine whether the Mississippi Board’s actions fell within a “comprehensive regulatory scheme.” This determination required an examination of the NGPA. The Court considered the history of the NGPA and held its enactment reflected a congressional belief that a new system of natural gas pricing was needed to balance supply and demand. However, the Court concluded the NGPA did not “constitute a federal retreat from a comprehensive gas policy.” 88 L. Ed. 2d at 743. The Court reached this conclusion despite the fact that the NGPA specifically states that the provisions of the NGA and the jurisdiction of the FERC shall not apply to the “first sale” of high cost gas or new natural gas.
The Court reasoned that the fact the FERC can no longer directly regulate the prices at which pipelines purchase high cost gas has little to do with whether state regulations which affect a pipeline’s cost and purchasing patterns impermissibly intrude upon federal concerns. The Court further reasoned that the inability of the FERC under the NGPA to regulate some aspects of wellhead sales of gas is a result of Congress’ intent that the determination of supply and first-sale price be left to the market. Finally, the Court concluded that while Congress enacted the NGPA in an attempt to move toward a less regulated national natural gas market, its decision to remove jurisdiction from the FERC cannot be interpreted as an invitation to the states to impose additional regulations. 88 L. Ed. 2d at 744.
The Court next determined the Mississippi Board’s order disturbed the “uniformity of the federal scheme,” 88 L. Ed. 2d at 745, because it would have the effect of increasing the ultimate price of gas to consumers. The Court reasoned that since “take- or-pay” provisions are standard industry-wide and pipelines are already committed to purchase gas in excess of market demand, Mississippi’s order would require Transco to take delivery of non-contract gas. This in turn would result in Transco not taking delivery of contract gas elsewhere, triggering take-or-pay provisions and ultimately increasing costs to Transco customers. 88 L. Ed. 2d at 745.
The Commission now urges this court to apply the same analysis used in Transco, but to reach a different result than did the Supreme Court — i.e., that the order amending the basic proration order for the Hugoton Field is not preempted by the NGA or the NGPA. In contrast, the appellants argue that Transco requires us to reverse our previous ruling upholding the Commission’s order.
In determining whether Transco necessitates a reversal of our previous holding, we should apply the two-part test employed by the Supreme Court in both Northern Gas and Transco. First, we must consider whether the order amending the basic proration order for the Hugoton Field falls within the limits of a comprehensive federal regulatory scheme rather than within the category of regulatory questions reserved for the states; and, if so, whether the effect of the order will be to impair market forces.
The Commission argues the order in question here does not come within a comprehensive federal regulatory scheme because it is directed at producers of natural gas rather than purchasers. The Commission points out that Congress has specifically excluded the areas of “production and gathering” from the FERC’s jurisdiction under the Natural Gas Act. 15 U.S.C. § 717(b). “Production” and “gathering” are terms which have been narrowly defined to include the physical acts of drawing gas from the earth and preparing it for the first stages of distribution. Northern Gas Co. v. Kansas Comm’n., 372 U.S. at 90. This distinction was also recognized in Transco where the Court noted that it is “ ‘undeniable that a state may adopt reasonable regulations to prevent economic and physical waste of natural gas.’ ” 88 L. Ed. 2d at 742 (quoting Cities Service Co. v. Peerless Co., 340 U.S. 179, 95 L. Ed. 190, 71 S. Ct. 215 [1950]).
The Commission further argues that the issue of federal preemption was adequately dealt with in our first opinion on this case where we determined that the Commission’s order was not preempted by federal regulation. We held:
“The order in the instant case gives us pause. It obviously is intended for purchasers, but is directed to producers. Hence, the question which this court must decide is whether this indirect effort to influence purchasers meets the standards noted in Northern Gas, which would preclude state regulation in this area. As stated in Northern Gas, federal regulation does not apply to the production or gathering of natural gas. Interpreted in a narrow sense, as suggested by Northern Gas, the matter of allowables must be construed to pertain to production. The state has regulatory authority over production. The rules on underages are a part of production regulation and thus are not violative of the federal act, even though purchasers are indirectly caught in the backwash.” 237 Kan. at 266-67.
The appellants concede that the NGA does not confer jurisdiction to the FERC over the production or gathering of natural gas, but argue the Commission’s order, both in purpose and effect, is not so limited. As support for this argument, the appellants point out that the admitted purpose of the order is to compel interstate pipelines to purchase a greater volume of gas from the Hugoton Field. The Commission argues its purpose was to prevent waste and protect correlative rights.
The appellants also refer to the Supreme Court’s statement in Transco that “[the Mississippi order] disturbs the uniformity of the federal scheme, since interstate pipelines will be forced to comply with varied state regulations of their purchasing practices.” 88 L. Ed. 2d at 745. Appellants contend that if another state were to promulgate a similar order to “encourage production,” the appellants would be forced to comply with numerous state regulations regarding purchasing practices, thus “disturbing the uniformity of the federal scheme.”
The Commission does not dispute that its order will have an impact upon “all facets of the market including interstate commerce.” However, it contends any such effect will be the result of decisions by the pipeline purchasers, not the gas producers to whom the order is addressed.
We have reexamined our decision in light of Transco, as suggested by the U.S. Supreme Court. From that reexamination, we conclude this case is distinguishable from Transco. There, the state regulation is addressed to gas purchasers. Here, the amendment to paragraph (p) of the basic proration order for the Kansas Hugoton Gas Field pertains to gas producers. Congress specifically excluded production and gathering of gas from the FERC’s jurisdiction under the Natural Gas Act. 15 U.S.C. §717(b). Further, the Commission is vested with the responsibility to prevent waste and protect correlative rights of producers and landowners when production is from a common source of supply. Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. at 254; Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, Syl. ¶ 5, 222 P.2d 704 (1950). The Commission has exercised its authority in this case by limiting the time in which producers may reinstate underages. Placing such a limitation on recovery of underages is a part of the Commission’s authority to prorate and control production to prevent economic and physical waste and to protect correlative rights between producers in the Kansas Hugoton Gas Field and those in the Oklahoma and Texas Hugoton Field.
It is obviously correct that any change in rates of production of gas sold in interstate commerce has an effect on the interstate market. But that alone does not eliminate the jurisdiction of the Kansas Corporation Commission. If so, the FERC would have total jurisdiction over all gathering and production of gas which is sold in interstate commerce.
We think the test of whether the FERC has jurisdiction over state regulation of producers is whether the regulation is primarily directed at the marketing of gas rather than production thereof. Here, the Commission found the amendment to paragraph (p) of the basic proration order was necessary for the prevention of waste and protection of correlative rights. Though controverted, there is evidence in the record to support that finding. Further, any effect on interstate sales of gas is merely incidental rather than the objective of the order. Thus, we hold the order does not transgress federal regulation of natural gas in interstate commerce.
The order is affirmed.
Schroeder, C.J., dissenting.
Allegrucci, J., not participating. | [
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The opinion of the court was delivered by Nuss, C.J.:
In this multiconviction sentencing case, Samuel Darrah claims the district court abused its discretion in ordering his 100-month sentence for attempted aggravated kidnapping be consecutive to, instead of concurrent with, his hard 25 life sentence for felony murder. In support, Darrah argues that he did not personally kidnap or fatally stab the victim. He further claims the two other individuals involved in the crimes played greater roles than his. But given Darrah's leadership in the planning, coordinating, and carrying out of these serious crimes, we conclude the court did not abuse its discretion in imposing consecutive sentences under K.S.A. 2018 Supp. 21-6819(b). So we affirm.
FACTS AND PROCEDURAL HISTORY
The essential facts come from a preliminary hearing. Witnesses included Darrah's alleged coconspirators in James Croft's murder: Clinton Bascue and Darrah's girlfriend, Kamra Farrell. Darrah's close friend, Christa Martin, and Dan Kelly-Darrah's drug dealer and fellow band member-also testified.
Darrah, Farrell, and Bascue lived and did methamphetamines together in the summer of 2014. One day Kelly, their usual dealer, gave Darrah $ 3,200 to buy a supply of drugs. Darrah gave the money to Croft-also known as "Frog"-to exchange for drugs. But Croft never provided them. So Darrah told Kelly he did not have the drugs because Frog had robbed him. Kelly became upset and told Darrah to fix it.
By that November, Darrah still had not paid the money back or obtained the drugs for Kelly. Nevertheless, Darrah went with Farrell and Bascue to Kelly's house in Wichita for more drugs. Darrah told Kelly he was going to make it right by killing Croft. But Kelly did not care anymore, telling Darrah to just drop it because killing Croft would not get his money back. Darrah continued to say he would take care of it, however, which Kelly took to mean that Darrah would kill Croft. After Farrell and Darrah left Kelly's house, she and Darrah continued to discuss finding Croft and killing him.
A few days later Darrah came to his friend Christa Martin's home in the early morning with Farrell and Bascue. They all went into her garage to do drugs and talk. There, Darrah told Martin he had been robbed of $ 3,200 by an individual known as "Frog." Farrell said she hoped they could find Frog and that he could lead her to John Stark whom Farrell believed had her computer containing pictures of her deceased child.
According to Martin, Darrah had a gun and he and Farrell discussed robbing Frog. The plan was for Farrell to drop Darrah and Bascue in a field. Farrell then would pick Frog up from his home and take him to the field where they would rob him. Farrell asked Martin if she would drive a vehicle or if they could borrow one, and Martin said no. Martin left the garage at that point because she did not want any involvement in the scheme. Kacee Probst, who lived with Martin, provided similar testimony.
Farrell's testimony about the crime planning in the garage was similar to Martin's. In addition, Farrell testified she had been in contact with Croft before they had stopped at Kelly's house and Croft had told her that he knew the location of her computer. She wanted to meet with him as a step toward retrieving her computer from Stark and to meet him without Darrah and Bascue because he trusted her.
According to Farrell, Darrah was jealous of Croft, whose text messages indicated he wanted to have sex with her. So after the trio-Farrell, Darrah, and Bascue-left Martin's house, Darrah directed Farrell to drop him and Bascue off at Moccasin Road. Both men were armed-Darrah with a gun and Bascue with knives-and they waited by the roadside. According to Farrell, the plan was for her to bring Croft there and for Darrah and Bascue to rough him up-then force him to take them to Stark to retrieve Farrell's computer. Then, Farrell would punch Croft, and Darrah would shoot him to death.
Farrell dropped off Darrah and Bascue and then went to Croft's house. After spending some time together there, Croft left with Farrell to look for her computer. Without Croft's knowledge, throughout most of the encounter Darrah listened in on their conversation via a Bluetooth device on Farrell's ear.
Farrell drove Croft to the field where Darrah and Bascue were waiting. Croft became suspicious and yelled at her to stop. Farrell got out, Bascue came running up, and Darrah started shooting at the car. Bascue jumped in from the passenger side and fought with Croft as the car slid into the ditch.
Bascue then jumped out of the car and ran over to Darrah and Farrell saying he had stabbed Croft. Bascue handed Darrah the knife which Darrah started stabbing into the ground. Darrah also took apart his gun and threw the parts around in the field. Darrah instructed Farrell to call 911 and report the car stolen. After some debate, she made the call, and the three started walking away.
In the meantime, a passerby had already stopped at Farrell's car and called 911. By the time paramedics arrived, Croft was dead. Law enforcement officers soon caught up with Darrah, Farrell, and Bascue in the field nearby.
While the case was scheduled for a status conference, the parties reached a plea agreement. The State agreed to amend original charges to first-degree felony murder in violation of K.S.A. 2018 Supp. 21-5402(a)(2) and added two more counts: attempted aggravated kidnapping in violation of K.S.A. 2018 Supp. 21-5408(b), 21-5210(a), and 21-5301, a severity level 3 person felony; and aggravated robbery in violation of K.S.A. 2018 Supp. 21-5420(b)(2) and 21-5210(a), a severity level 3 person felony. Darrah agreed to plead no contest to the charges as amended. The parties had no agreement as to sentencing recommendations. The district court ultimately accepted Darrah's plea.
Before sentencing, Darrah filed a motion asking the court to exercise its discretion to impose concurrent instead of consecutive sentences. In the motion, Darrah argued that his culpability was not as severe as Bascue's and he was not as central to the plot as Farrell. So he maintained his sentence should not be greater than either of theirs and the only way to assure that was to run the counts concurrent and not consecutive.
At the sentencing hearing, the court reviewed the presentence investigation report which showed Darrah had a previous conviction, resulting in a criminal history score of D. The State requested the aggravated gridbox sentence for attempted aggravated kidnapping: 100 months. In support, the State cited K.S.A. 2018 Supp. 21-6815(c)(2)(H), which describes one aggravating factor as whenever the person being sentenced is the leader, recruiter, instigator, or manager of a conspiracy between two or more persons to commit a crime.
In response to the motion, the State recited facts from the preliminary hearing to show Darrah was the leader of the conspiracy, specifically including the following: (1) the motive for the crimes was to recoup money stolen from Darrah by Croft; (2) Darrah acquired the gun used in the crime; (3) Darrah's girlfriend, Farrell, had a motive to get her computer back from Stark, but not to kill Croft; (4) Bascue did not have any motive against either Stark or Croft; and (5) Darrah was the connection to both Kelly (to whom Darrah owed the money he wanted to reclaim from Croft) and Martin (at whose house the conspirators hatched the plot).
The State also read into the record the victim statement from Croft's wife, Darlene Lawrence, about the sorrow and hardship she and their daughter suffered as a result of his death. As a result, the State requested the court run the attempted aggravated kidnapping sentence consecutive to the felony first-degree murder sentence and the aggravated robbery concurrent to both.
At sentencing Darrah requested the court impose the mitigated gridbox sentences for the two on-grid crimes. And he repeated his request for concurrent sentences for all three convictions. Darrah emphasized that Bascue stabbed Croft to death, not he. He further argued Bascue had already pled to the crimes and received a controlling sentence of 25 years. He also pointed out Farrell too had already pled and, because of another ongoing case, received a total of 30 years for both.
Darrah admitted he had struggled with drug addiction for his entire life. But he argued he accepted responsibility by entering the no contest plea. He also contended his involvement was not as extreme as the State made it out to be. Defense counsel described Darrah as 47 years old, but with a family history of cancer. Darrah has three children he wanted to see outside his prison walls at some point in his life. He would most likely be unable to do so if the court ran the counts consecutive.
For Count 1-felony murder-the court imposed a life sentence with the possibility of parole after 25 years ("hard 25"). On Count 2-attempted aggravated kidnapping-the court imposed the aggravated, gridbox sentence of 100 months and ordered it to run consecutive to Count 1. For Count 3, aggravated robbery, the court imposed the gridbox sentence of 59 months and ordered Count 3 be concurrent with Counts 1 and 2.
Our jurisdiction is under K.S.A. 2018 Supp. 22-3601(b)(3) (life sentence imposed).
ANALYSIS
Issue: The district court did not abuse its discretion by ordering Darrah to serve his sentences for felony murder and attempted aggravated kidnapping consecutively.
Darrah claims the sentencing court abused its discretion in ordering his 100-month sentence for aggravated attempted kidnapping be consecutive to his hard 25 life sentence. The State responds the consecutive sentences are reasonable under the particular facts of this case.
Standard of review
A sentencing judge has discretion to impose concurrent or consecutive sentences in multiple conviction cases under K.S.A. 2018 Supp. 21-6819(b) (absent certain circumstances, the sentencing judge shall "have discretion to impose concurrent or consecutive sentences in multiple conviction cases"). This statute does not list specific factors for consideration. Rather, it states 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. 2018 Supp. 21-6819(b) ; State v. Wilson , 301 Kan. 403, 405, 343 P.3d 102 (2015).
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. Shank , 304 Kan. 89, 92, 369 P.3d 322 (2016).
The party asserting an abuse of discretion bears the burden of establishing such abuse. State v. Corbin , 305 Kan. 619, 622, 386 P.3d 513 (2016).
Discussion
Given how Darrah has framed his issue on appeal, for us to conclude the district court abused its discretion by unreasonably ordering the sentences for the attempted aggravated kidnapping and felony murder convictions to run consecutive instead of concurrent, we would have to conclude that no reasonable person would have taken the court's view. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011). In applying the abuse of discretion test, even though the court did not make any factual findings or state reasons for its decision to run the sentences consecutive, a number of facts show Darrah was central to the conspiracy and acted as a leader in the commission of these serious crimes.
While Darrah himself did not commit the fatal stabbing of Croft, he was certainly involved in the planning and nearly every other aspect of the kidnapping and killing. This included providing the motive (revenge) for the drug transaction gone awry; repeatedly stating his intent to find Croft and kill him, despite Kelly telling him to "drop it"; being angry at Croft for flirting with Darrah's girlfriend, Farrell; determining the remote location for the commission of the crime; ensuring he was armed there; covertly coordinating with Farrell over her Bluetooth as she followed his instructions to lure Croft to where Darrah and Bascue were waiting; and, immediately after the stabbing, directing disposal of the weapons and telling Farrell to call and report the crime car as stolen.
In spite of Darrah's claim that his involvement is not as extreme as the State made it out to be, a reasonable person could have concluded consecutive sentences were proportionate to the harm and culpability associated with Darrah's convictions under K.S.A. 2018 Supp. 21-6819(b). See State v. Shank , 304 Kan. 89, 369 P.3d 322 (2016) (no abuse of discretion in ordering consecutive instead of concurrent sentences where defendant cited youth and took responsibility for the crime but the State argued the brutal, cruel, and premeditated nature of the crime merited the consecutive sentences); State v. Wilson , 301 Kan. 403, 343 P.3d 102 (2015) (no abuse of discretion in ordering life sentence for murder and additional 310 months for remaining crimes to run consecutive instead of concurrent where defendant's misfortunes could not overcome the degree of harm he caused). We hold the district court did not abuse its discretion.
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The opinion of the court was delivered by Biles, J.:
Robert M. Weber challenges the district court's denial of a motion to correct an illegal sentence. He argues his 1976 Michigan conviction for assault with intent to commit criminal sexual conduct, second degree, was improperly scored as a person crime, resulting in a longer sentence following his 2007 attempted robbery conviction in Kansas. The Court of Appeals determined the person classification was correct. State v. Weber , No. 113,472, 2016 WL 5867238, at *3 (Kan. App. 2016) (unpublished opinion).
The overarching issue is whether the sentencing court properly classified Weber's 1976 Michigan conviction as a person crime. If it is scored as a nonperson crime, Weber's criminal history score is C instead of B. See K.S.A. 21-4709. That change would move Weber's sentence from presumptive imprisonment to presumptive probation, and the low grid-box sentence would drop from 27 to 25 months. See K.S.A. 21-4704.
We affirm in accordance with State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ( Murdock II ) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes).
FACTUAL AND PROCEDURAL BACKGROUND
Weber pleaded guilty to an April 2007 attempted robbery, a severity level 7 crime. The plea agreement reflects the State anticipated Weber would have a criminal history score of C.
A presentence investigation revealed Weber had two prior convictions: a 1976 Michigan conviction for assault with intent to commit criminal sexual conduct, second degree; and a 1979 Michigan conviction for criminal sexual conduct, first degree. The PSI reflected these should both be scored as person felonies, giving Weber a criminal history score of B. See K.S.A. 21-4709 (providing B criminal history score if offender has two prior person felony convictions). Weber did not object.
After overruling Weber's motion for a downward dispositional departure, the sentencing court determined he had a criminal history score of B and imposed the low grid-box sentence, 27 months, for the attempted robbery conviction. The sentence was imposed in September 2007. Weber did not appeal.
In 2014, Weber moved to correct an illegal sentence after the decision in State v. Murdock , 299 Kan. 312, 318-19, 323 P.3d 846 (2014) ( Murdock I ) (holding pre-KSGA out-of-state convictions must be scored as nonperson offenses), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). He argued based on Murdock I that both Michigan convictions should have been scored as nonperson felonies because the person/nonperson designations did not appear in comparable Kansas statutes when the Michigan crimes occurred. The district court denied the motion, and Weber timely appealed.
Keel overruled Murdock I before Weber filed his opening brief with the Court of Appeals. He adapted to this by arguing for the first time that the person classification for his 1976 Michigan conviction was improper because it turned on judicial fact-finding that violated the Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), rule articulated in State v. Dickey , 301 Kan. 1018, 1021, 350 P.3d 1054 (2015), and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
A Court of Appeals panel affirmed. Weber , 2016 WL 5867238, at *3. It reasoned "the 'essential question' " in making the person/nonperson designation was whether the out-of-state and Kansas offenses being compared are " 'similar in nature and cover similar conduct.' " 2016 WL 5867238, at *2. The panel rejected Weber's claim that this comparison required impermissible judicial fact-finding since the Michigan crime's specific intent element was broader than the Kansas offense's. In his view, the Michigan statute criminalized conduct that is not always a felony in Kansas. 2016 WL 5867238, at *3.
The panel stated it would search for "the Kansas offense that is the 'closest approximation' or most 'comparable' " and that "[o]ffenses may be comparable 'even when the out-of-state statute encompassed some acts not necessarily encompassed by the Kansas statute.' " 2016 WL 5867238, at *2. The panel reasoned that, after referring to the out-of-state jurisdiction's laws to determine whether a prior crime is a felony:
"[I]n this second step of the analysis the issue for the sentencing court to resolve was whether the comparable Kansas crime is a person or a nonperson crime. Intent is not a factor. Assaults in Kansas in their various iterations are all person offenses. Regardless of the intent of a defendant convicted of some form of assault in Kansas, the offense is always a person crime. Thus, the district court did not need to engage in any fact-finding to determine that Weber's 1976 Michigan crime should be treated as a person crime." 2016 WL 5867238, at *3.
We granted Weber's timely petition for review. The State did not cross-petition for review of the panel's adverse rulings rejecting its arguments that (1) Weber's motion was not a proper procedural vehicle for his constitutional claims; (2) he waived the claim by failing to object to his criminal history score at sentencing; (3) he waived his right to a jury determination of sentencing facts; (4) his claim was barred by res judicata; and (5) Dickey , 301 Kan. 1018, 350 P.3d 1054, and Descamps cannot be applied on collateral review of a sentence already final when those cases were announced. See Weber , 2016 WL 5867238, at *1-2.
Jurisdiction is proper. See K.S.A. 20-3018(b) (petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).
ANALYSIS
Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a prior out-of-state conviction must be classified as a "person" or "nonperson" crime. K.S.A. 21-4711(e) provides:
"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 a felony or a 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 . Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence." (Emphasis added.)
At the time Weber was sentenced, Kansas caselaw construed K.S.A. 21-4711(e) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003). "[T]he comparable offense" was "the closest approximation" to the out-of- state crime. 276 Kan. at 179, 72 P.3d 925.
But while Weber's petition for review was pending, the legal landscape for scoring out-of-state convictions arguably shifted because of State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018). In that decision, the court held:
"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562, 412 P.3d 984.
Weber raised the Wetrich issue in his supplemental brief. The State did not file a supplemental brief or respond to Weber's brief. But after the briefing deadlines, the State submitted a Rule 6.09 (2019 Kan. S. Ct. R. 39) letter noting that over a year earlier-and 12 months before Weber's petition for review was granted-the Legislature amended the Code of Criminal Procedure to provide, "A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." See K.S.A. 2018 Supp. 22-3504(3). In its letter, the State argued this change precluded applying Wetrich in Weber's case because the revision is procedural only and, therefore, retroactive, citing State v. Dawson , 55 Kan. App. 2d 109, 116-18, 408 P.3d 995 (2017), rev. granted 308 Kan. 1597 (2018).
Weber argues the State waived its new statutory preclusion argument when it could have raised that issue in its supplemental brief because the legislative amendment occurred well before the State's briefing deadline. On the merits, Weber advances three points: (1) the Court of Appeals incorrectly decided Dawson because the statutory amendment affects substantive rights; (2) Wetrich merely clarified the law, so it did not represent the "change in the law" required by the statutory amendment; and (3) the analysis used in Wetrich had been required at least as early as Apprendi in 2000, before his sentence was imposed.
The State waived its new statutory preclusion argument.
The timeline is important. The legislative change the State wants to invoke to preclude Weber's argument was effective May 18, 2017. As it happened, just over a year later this court granted Weber's petition for review, which triggered the parties' ability to submit supplemental arguments. On June 28, 2018, Weber filed his supplemental brief arguing Wetrich applied to his illegal sentence claim. Under Supreme Court Rule 8.03(h)(3) (2018 Kan. S. Ct. R. 53), the State could have filed a response within 30 days. It did not avail itself of that opportunity. On August 8, 2018, the State filed a Rule 6.09 letter to raise for the first time the statutory preclusion argument arising from the 2017 legislative enactment. Weber now objects to the State's procedural failure to properly address the question. We agree with Weber.
In State v. Torres , 294 Kan. 135, 273 P.3d 729 (2012), the court held the State could not use a 6.09 letter to raise recent amendments to K.S.A. 60-455 as a rationale for finding it was harmless to erroneously admit evidence under the older version of the statute. The court reasoned the State's claim was "inadequately briefed and therefore not properly before us in this case." 294 Kan. at 145, 273 P.3d 729. Similarly, in State v. Tague , 296 Kan. 993, 1010-11, 298 P.3d 273 (2013), the court held a defendant could not use a 6.09(b) letter to raise an entirely new issue on appeal concerning a lesser included offense. It reasoned, " Rule 6.09(b) letters are reserved for citing significant relevant authorities not previously cited which come to a party's attention after briefing." 296 Kan. at 1010, 298 P.3d 273. Tague cited State v. Houston , 289 Kan. 252, 277, 213 P.3d 728 (2009), which declared Rule 6.09"was not intended to be, nor should it be, used as yet another briefing opportunity."
The State waived its statutory preclusion argument by failing to properly brief it. Both the statutory change and Wetrich predate our decision to grant review in Weber's case. Both obviously were known to the State prior to the parties' supplemental briefing deadline, and that briefing was the State's chance to argue their potential impact. See Rule 8.03(h)(3) (2018 Kan. S. Ct. R. 53). The State missed that opportunity, even though Weber seized it. Using a subsequent Rule 6.09 letter to advance a legal argument available to the State at the time it could have briefed it violates Rule 6.09's purpose. See Houston , 289 Kan. at 277, 213 P.3d 728.
The 1976 Michigan offense was properly scored as a person crime at sentencing.
In Murdock II , the district court sentenced the defendant three times. The second was in response to our mandate after Murdock I . The district court followed that mandate, the State did not appeal, and the second sentence became final. Six months later, we decided Keel , which overruled Murdock I . A few days after that, the State moved to correct Murdock's sentence based on Keel , and the district court sentenced him for the third time.
The Murdock II court reversed, repudiating the State's effort at a third sentencing. The Murdock II court held:
"[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.
Wetrich was a change in the law as contemplated by Murdock II . See Murdock II , 309 Kan. at 592, 439 P.3d 307 ("[T]rue changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced."). Before Wetrich, no Kansas case construed the term "comparable" as used in K.S.A. 2018 Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-narrower requirement. Vandervort rejected such a construction when it reviewed a defendant's claim that an out-of-state offense and a Kansas offense could not be comparable since the out-of-state offense was broader, i.e., did not contain a lack-of-consent element required to commit the Kansas crime. See 276 Kan. at 178-79, 72 P.3d 925 ("Vandervort confuses the term 'comparable' with the concept of identical elements of the crime."). Wetrich substituted the statute's new interpretation for the old one. See 307 Kan. at 562, 412 P.3d 984.
Under the law at the time of Weber's sentencing, as he concedes, "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." Vandervort , 276 Kan. at 179, 72 P.3d 925. In Murdock II 's wake, he cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal. See State v. Newton , 309 Kan. ----, ----, 442 P.3d 489, 2019 WL 2399484 (No. 116,098, filed June 7, 2019), slip op. at 6.
Affirmed.
Luckert, J., not participating.
Michael J. Malone, Senior Judge, assigned.
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,472 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616. | [
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The decision of the court was delivered by Beier, J.:
This case requires us once again to examine the constitutionality of K.S.A. 60-19a02, which caps jury awards for noneconomic damages in personal injury actions. Plaintiff Diana K. Hilburn argues that the application of K.S.A. 60-19a02 to reduce her jury award of $ 335,000 to a judgment of $ 283,490.86 violated her rights under section 5 and section 18 of the Kansas Constitution Bill of Rights.
In Miller v. Johnson , 295 Kan. 636, 289 P.3d 1098 (2012), a majority of this court upheld the application of the noneconomic damages cap to a medical malpractice plaintiff's jury award in the face of challenges under section 5 and section 18. The Miller majority extended what it described as a "well-entrenched" section 18 quid pro quo analysis to section 5 challenges. Under that test, the Legislature must provide an "adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18." 295 Kan. at 654, 289 P.3d 1098.
Today, in this auto-truck accident case, we change course on section 5, declining to apply the quid pro quo test to analyze Hilburn's challenge. Section 5 declares, "The right of trial by jury shall be inviolate." As discussed below in detail, the noneconomic damages cap under K.S.A. 60-19a02 violates Hilburn's right protected by section 5 because it intrudes upon the jury's determination of the compensation owed her to redress her injury. We therefore reverse the Court of Appeals decision affirming the district court, reverse the district court's judgment, and remand this case to district court for entry of judgment in Hilburn's favor on the jury's full award. This decision eliminates any necessity of addressing Hilburn's section 18 claim.
FACTUAL AND PROCEDURAL BACKGROUND
Hilburn was injured in November 2010 when the car in which she was riding was rear-ended by a semi-truck. Hilburn sued the truck's owner, Enerpipe Ltd., alleging that the truck driver's negligence caused the collision and that Enerpipe was vicariously liable for its driver's actions.
In its answer to Hilburn's Petition, Enerpipe admitted the driver's negligence and conceded its vicarious liability.
The case proceeded to a trial on damages, after which a jury awarded Hilburn $ 335,000 in damages comprising $ 33,490.86 for medical expenses and $ 301,509.14 for noneconomic losses.
Defense counsel prepared a journal entry of judgment against Enerpipe for $ 283,490.86 because, "pursuant to K.S.A. 60-19a02(d), judgment must be entered in the amount of $ 250,000 for all of Diana K. Hilburn's noneconomic loss." Hilburn objected on the ground that K.S.A. 60-19a02 is unconstitutional. She alleged violations of sections 1, 5, and 18 of the Kansas Constitution Bill of Rights, as well as the jury trial and due process guarantees of the United States Constitution.
The district court judge acknowledged that Hilburn's case was distinguishable from Miller , which was a medical malpractice case, but he ultimately decided the constitutional issues in defendant's favor. The judge accepted Enerpipe's argument that there was an adequate substitute remedy for Hilburn's loss of any section 5 or section 18 rights, just as mandatory medical malpractice insurance had constituted an adequate substitute remedy in Miller . He relied on federal law mandating that a motor carrier operating in interstate commerce must maintain a minimum level of liability insurance, see 49 U.S.C. § 13906(a)(1) (2012) ; on Kansas law and regulation adopting the federal minimum liability requirements, see K.S.A. 2010 Supp. 66-1,108b ; K.A.R. 82-4-3n (2014 Supp.) ; and on Kansas' no-fault auto insurance regime under the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. (KAIRA); see also K.S.A. 40-3107(e) - (f) (requiring all policies contain minimum levels of personal injury protection benefits). The district judge entered a $ 283,490.86 judgment for Hilburn.
Hilburn appealed to the Court of Appeals. In her brief, Hilburn asserted a facial challenge to the damages cap under section 5, asserting that the quid pro quo test should not be applied to analyze that claim. In addition, she argued that the cap violated section 18 because the Legislature had not provided a suitable or sufficient substitute remedy. According to Hilburn, the two necessary prongs of the quid pro quo test were unmet: The noneconomic damages limitation was not reasonably necessary in the public interest, "as applied" to her; and the Legislature failed to provide an adequate substitute remedy for impairment of her constitutional rights.
The Court of Appeals panel rejected Hilburn's arguments and affirmed. See Hilburn v. Enerpipe, Ltd. , 52 Kan. App. 2d 546, 560, 370 P.3d 428 (2016). Believing itself bound by the precedent of Miller , the panel summarily declined Hilburn's invitation to reexamine the threshold legal issue of whether the quid pro quo test should apply to section 5. 52 Kan. App. 2d at 554, 370 P.3d 428.
The panel then turned to the first prong of the quid pro quo test for both section 5 and section 18 and determined that it had been satisfied. Modification of the right to jury trial under section 5 and the common-law right to remedy under section 18 was " 'reasonably necessary in the public interest to promote the public welfare,' " because "the damages cap operates in a broader scheme of mandatory insurance and the State maintains an interest in that insurance remaining available and affordable to compensate accident victims." 52 Kan. App. 2d at 554, 556, 370 P.3d 428 (quoting Miller , 295 Kan. at 657, 289 P.3d 1098 ).
The panel also concluded that the " 'more stringent' " second prong of the quid pro quo test, that is, adequacy, had been satisfied because mandatory insurance for motor carriers guaranteed "a reliable source of recovery" for victims in accidents involving trucks. Hilburn , 52 Kan. App. 2d at 556, 558, 370 P.3d 428. The panel relied on federal and state mandatory motor vehicle insurance laws and KAIRA.
Hilburn petitioned this court for review, which was granted.
The Kansas Attorney General intervened after initial oral argument in this case, pursuant to K.S.A. 2018 Supp. 75-764. The Attorney General, like Enerpipe, argued that the quid pro quo test had been satisfied for both section 5 and section 18. But, like Hilburn, he questioned the applicability of the test to section 5, arguing that "legislative restrictions on remedies do not violate the right to trial by jury." The Attorney General also asked this court to reconsider whether a statute alleged to violate section 18 must satisfy the quid pro quo test.
DISCUSSION
Preservation
As a preliminary matter, we take up whether Hilburn preserved her challenge to the applicability of the quid pro quo test for section 5 analysis.
The version of Kansas Supreme Court Rule 8.03(a)(4)(C) in effect at the time Hilburn filed her petition for review required that such a petition contain a "statement of the issues decided by the Court of Appeals of which review is sought" and said that this court would "not consider issues not presented or fairly included in the petition." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). Hilburn's petition focused exclusively on whether the Court of Appeals correctly held that the quid pro quo test was satisfied; it did not separately list as an issue or subissue whether the quid pro quo test applied in analyzing a section 5 claim. However, the same rule subsection that purported to limit the number and identity of issues that could be decided on petition for review also explicitly allowed us to "address a plain error not presented." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). And, in civil cases such as this, a different subsection of Supreme Court Rule 8.03 permitted but did not require us to consider "other issues that were presented to the Court of Appeals and that the parties have preserved for review." Supreme Court Rule 8.03(h)(1) (2015 Kan. Ct. R. Annot. 81).
Hilburn argued in the district court that her section 5 jury trial right was violated by the noneconomic damages cap, preserving the necessary subissue on the proper legal test to determine the existence of a violation. Her brief to the Court of Appeals challenged whether the quid pro quo test should apply in analysis of her section 5 claim. Indeed, the Court of Appeals panel decided the issue in Enerpipe's favor. See Hilburn , 52 Kan. App. 2d at 554, 370 P.3d 428. Once Hilburn's petition for review was granted, she argued in her supplemental brief to this court that the " 'inviolate' constitutional right to trial by jury should not be impaired by the judicial creation of a quid pro quo substitute remedy" and "urge[d] this court on review to strictly construe Section 5 to its simple, unambiguous meaning and not engage in the judicial creation of exceptions to this 'inviolate' right." In Enerpipe's supplemental brief, filed the same day, it argued we should continue to apply the quid pro quo test in a section 5 analysis. It advanced this argument again in its response to Hilburn's supplemental brief. As mentioned, the Attorney General, as intervenor, also has dealt with the applicability of quid pro quo analysis in cases alleging section 5 violations.
Supreme Court Rule 8.03 has since been amended, effective July 1, 2018, in part to address the inherent tension in the language that was in effect when Hilburn filed her petition for review. See Supreme Court Rule 8.03 (2019 Kan. S. Ct. R. 53). We are satisfied, however, that the issue of whether the quid pro quo test applies to analysis of Hilburn's section 5 claim is properly before us under the old rule. It was preserved in the district court, argued and decided in the Court of Appeals, and addressed by both parties and the intervenor before us.
Standard of Review
The core substantive issue before us is whether K.S.A. 60-19a02 is constitutional. "Whether a statute is constitutional is a question of law." Board of Johnson CountyComm'rs v. Jordan , 303 Kan. 844, 858, 370 P.3d 1170 (2016). We have often said that "before a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it. If a court can find any reasonable way to construe the statute as valid, it must." Board of Johnson County Comm'rs, 303 Kan. at 858, 370 P.3d 1170 ; see also State v. Laturner , 289 Kan. 727, 735, 218 P.3d 23 (2009) ("Whenever a court considers the constitutionality of a statute, the separation of powers doctrine requires the court to presume the statute is constitutional.").
Recently, however, we pared back this presumption of constitutionality in cases dealing with "fundamental interests" protected by the Kansas Constitution. See Hodes & Nauser, MDs v. Schmidt , 309 Kan. 611, 673-74, 440 P.3d 461 (2019). In such cases, the presumption of constitutionality does not apply.
Section 5 of the Kansas Constitution Bill of Rights states that "[t]he right of trial by jury shall be inviolate." We have previously acknowledged that "[t]his right is 'a basic and fundamental feature of American jurisprudence.' " Miller , 295 Kan. at 647, 289 P.3d 1098 (quoting Gard v. Sherwood Construction Co. , 194 Kan. 541, 549, 400 P.2d 995 [ (1965) ] ). " 'It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements.' " Miller , 295 Kan. at 647, 289 P.3d 1098 (quoting Gard , 194 Kan. at 549, 400 P.2d 995 ); see also Miller , 295 Kan. at 696, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (right is more than right to impanel a jury, it is a process that includes: right to assemble a jury, right to present evidence, right to have the jury determine and award damages, and right to a judgment for the full damages as determined by jury and supported by evidence).
Hence, we have little difficulty deciding that the right protected by section 5 is a "fundamental interest" expressly protected by the Kansas Constitution Bill of Rights. As such, we will not apply a presumption of constitutionality to challenges brought under section 5.
The Challenged Statute
K.S.A. 60-19a02(a) defines " 'personal injury action' " as "any action seeking damages for personal injury or death." Further,
"(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $ 250,000.
"(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.
"(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $ 250,000 for all the party's claims for noneconomic loss. ..." K.S.A. 60-19a02.
The amount of the cap has since been amended upward and is currently $ 325,000. It is set to increase again, to $ 350,000, on July 1, 2022. But these changes are inapplicable to Hilburn and thus not at issue here. See K.S.A. 2018 Supp. 60-19a02(d).
The Test for Section 5 Claims
" Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence." Miller , 295 Kan. at 647, 289 P.3d 1098 (citing State ex rel. v. City of Topeka , 36 Kan. 76, 85-86, 12 P. 310 [ (1886) ] ); see also Miller , 295 Kan. at 696, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) ("This language preserves the right to jury trial in those causes of action that were triable to a jury under the common law extant in 1859, when the Kansas Constitution was ratified by the people of our state."); In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring) ("[T]he uncompromising language of [ section 5 ] applies if an examination of history reveals there was a right at common law to a jury trial under the same circumstances.").
We have consistently held that the determination of noneconomic damages was a fundamental part of a jury trial at common law and protected by section 5. See Miller , 295 Kan. at 647, 289 P.3d 1098 (no dispute that determination of damages, including noneconomic damages, was question of fact for jury in common-law tort actions); see also Smith v. Printup , 254 Kan. 315, 324, 866 P.2d 985 (1993) ("There is no question in Kansas that the right to trial by jury includes the right to have a jury determine actual damages."); Samsel v. Wheeler Transport Services, Inc. , 246 Kan. 336, 358, 789 P.2d 541 (1990) ( Samsel II ) (jury trial right includes right to have jury determine damages in personal injury action), disapproved of on other grounds by Bair v. Peck , 248 Kan. 824, 811 P.2d 1176 (1991) ; Kansas Malpractice Victims Coalition v. Bell , 243 Kan. 333, 343, 757 P.2d 251 (1988) (jury's traditional role is to decide issues of fact, determination of damages is issue of fact; thus jury's responsibility to determine damages), disapproved of on other grounds by Bair , 248 Kan. 824, 811 P.2d 1176. Accord Watts v. Lester E. Cox Medical Centers , 376 S.W.3d 633, 640 (Mo. 2012) (Missouri Constitution's "inviolate" right to jury includes right to have jury determine facts, including noneconomic damages).
The noneconomic damages cap in K.S.A. 60-19a02 clearly implicates section 5's "inviolate" jury trial right, as that right has historically been understood. The next question is whether it impairs that right by interfering with the jury's fundamental function. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996) (after determining applicability, court considers impairment; Seventh Amendment jury trial analysis asks whether "particular trial decision must fall to the jury ... to preserve the substance of the common-law right as it existed" at ratification); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2302.4 (2008) (analysis of whether procedure violates Seventh Amendment "must look to whether that procedure obstructs or interferes with the jury's substantive role as the fact-finder").
We hold the statute necessarily infringes on the constitutional right.
" 'The individual right to trial by jury cannot "remain inviolate" when an injured party is deprived of the jury's constitutionally assigned role of determining damages according to the particular facts of the case.' Watts, [376 S.W.3d at 640.] Giving the jury 'a practically meaningless opportunity to assess damages simply "pays lip service to the form of the jury but robs it of its function." ' [ 376 S.W.3d at 642 ] (quoting Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 655, 771 P.2d 711 [1989] [en banc] ); see also Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 735-36, 691 S.E.2d 218 (2010) (striking down damages cap for infringing state constitution's inviolate right to jury trial); Lakin v. Senco Products, Inc., 329 Or. 62, 78-79, 987 P.2d 463, 473 (1999) (same); Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991) (same); Smith v. Department of Ins., 507 So. 2d 1080, 1089 (Fla. 1987) (same); Arneson v. Olson, 270 N.W.2d 125, 136 (N.D. 1978) (same)." Miller , 295 Kan. at 698 [289 P.3d 1098] (Beier, J., concurring in part and dissenting in part).
Despite this infringement of section 5's jury trial right by K.S.A. 60-19a02, a majority of this court held in Miller that any impairment was permissible as long as the two-part due process-based quid pro quo test applicable in section 18 analysis was satisfied. But the overlay of the quid pro quo test "transforms what the people made inviolate into something violable at will." 295 Kan. at 698-99, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). The court's previous decision to apply the quid pro quo test to section 5"overlook[ed] long-standing limitations on the legislature's power to modify the common law; overestimate[d] the persuasive force of prior Kansas cases; and shortcut[ ] the necessary cost-benefit evaluation" necessary when examining whether to keep or jettison originally erroneous precedent. 295 Kan. at 699, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In Miller , the majority ignored
"the plain 'inviolate' language chosen by Kansas citizens for Section 5's jury trial provision. Inviolate means not 'disturbed or limited.' In re Rolfs, 30 Kan. [758,] 762[, 1 P. 523 (1883) ]. It is defined as ' "[n]ot violated; unimpaired; unbroken; unprofaned." ' Samsel II, 246 Kan. at 368 [789 P.2d 541] (Herd, J., dissenting); see also Watts, [376 S.W.3d at 638 ] ('inviolate' means free from change or blemish, pure, unbroken) (citing Webster's Third New International Dictionary 1190 [1993] ); Sofie [ v. Fibreboard Corp. ], 112 Wash. 2d [636,] 656, [771 P.2d 711 (1989) (en banc) ] (citing same) ('inviolate' connotes deserving of highest protection, free from assault, trespass, untouched, intact). This inviolate right to jury trial is 'a basic and fundamental feature of American jurisprudence.' Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965) ; see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340-41, 343, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) (Rehnquist, J., dissenting) (right so important that denial of 'right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence'; right a 'bulwark' of liberties, so essential that it ' "was probably the only one universally secured by the first American state constitutions" ') (quoting Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 [1960] ).
"The language of Section 5 is 'uncompromising.' In re L.M., 286 Kan. at 476 [186 P.3d 164] (Luckert, J., concurring). Section 5 imposes a 'clear, precise and definite limitation[ ] upon the powers of the legislature.' Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 P. 284 (1884). It was chosen precisely because the people recognized that the right to jury trial required protection from legislative efforts to modify it in ways that destroy the substance of that right. See Wyandotte Const. Convention 462-63 (July 25, 1859) ('[T]hat very valuable right we propose to secure to the citizen in retaining the right of trial by jury, intact, will be accomplished by the words, "The right of trial by jury shall be inviolate." '); see also State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 (1886) (by preserving the right as 'inviolate,' framers intended that the right of trial by jury 'shall be and remain as ample and complete as it was at the time when the [C]onstitution was adopted')."
Miller , 295 Kan. at 699-700, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
As all members of this court acknowledged in Miller , it is within the power of the Legislature to modify the common law. See 295 Kan. at 705, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But "what may have been a mere common-law right to jury trial on the day before ratification of Section 5 was no longer a mere common-law right from ratification onward." 295 Kan. at 705, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
"Ratification expressed the people's choice to elevate the common-law right to jury trial to enumerated constitutional status. That status put it beyond everyday legislative meddling. The people entrusted juries with the task of deciding damages. The legislature's unwillingness to [entrust juries with deciding damages]. . . requires endorsement by the people before it can enjoy the force of law." 295 Kan. at 705-06, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
As the United States Supreme Court emphasized long ago:
"It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. [Citation omitted.] But here, we are dealing with a constitutional provision which has in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791. To effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental, and has been clearly pointed out by Judge Cooley in 1 Const. Limitations, 8th Ed., 124." Dimick v. Schiedt , 293 U.S. 474, 487, 55 S. Ct. 296, 79 L. Ed. 603 (1935).
See also Watts, 376 S.W.3d at 643 (allowing Legislature to modify constitutional rights makes protections "of only theoretical value ... [s]uch rights would not be rights at all but merely privileges that could be withdrawn"); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 736, 691 S.E.2d 218 (2010) (general legislative authority to modify common law does not permit abrogation of constitutional rights); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 652-53, 771 P.2d 711 (1989).
"Justice Herd made the same point in his dissent in Samsel II :
" 'Giving the legislature the authority to limit damages by changing the common law, or otherwise, violates § 5 of the Kansas Bill of Rights by taking the damage question away from the jury. A written constitution is adopted for the purpose of limiting the power of government. Providing that trial by jury shall be inviolate is a limitation on government as a protection of individual rights. There is no question the legislature has the power to change or abolish the common law. That, however, does not change the Kansas Constitution. A later change in the common law does not affect the meaning of § 5. Its meaning was fixed in 1859. The proper method of constitutional change is by amendment, not legislation.' 246 Kan. at 369-70, 789 P.2d 541 (Herd, J., dissenting).
"Even the case that is generally considered the source of recognition of legislative power to modify common law, Munn v. Illinois, 94 U.S. 113, 134, 24 L. Ed. 77 (1876), is explicit about constitutional limitations on the power: 'Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.' See also In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 725, 79 P.3d 751 (2003) (Kansas Constitution limits otherwise plenary power of legislature); Harris v. Shanahan, 192 Kan. 183, 207, 387 P.2d 771 (1963) ('It is axiomatic that [any] act of the legislature[ ] is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare.'); Lemons v. Noller, 144 Kan. 813, 817, 63 P.2d 177 (1936) (citing State v. Weiss, 84 Kan. 165, 168, 113 P. 388 [1911] ; Ratcliff v. Stockyards Co., 74 Kan. 1, 16, 86 P. 150 [ (1906) ] ) (legislature free to act except where Kansas Constitution restricts)." Miller , 295 Kan. at 706-07, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In Miller , a majority of this court relied on stare decisis to ground its application of the quid pro quo test to analysis of a section 5 jury trial challenge. In general, a "court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent." Rhoten v. Dickson , 290 Kan. 92, 112, 223 P.3d 786 (2010).
But this rule "excuses us from following precedent that is 'plainly and unmistakably' the result of mistake and error.' Prowant, Administratrix v. Kings-X, 184 Kan. 413, 416-17, 337 P.2d 1021 (Jackson, J., dissenting), rev'd on rehearing, 185 Kan. 602, 347 P.2d 254 (1959)." Miller , 295 Kan. at 707-08, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part); see also Arizona v. Gant, 556 U.S. 332, 348, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (Stare decisis does not require adherence to "a past decision when its rationale no longer withstands 'careful analysis.' ") (quoting Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 [2003] ); Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) ("This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound.").
Moreover, "stare decisis is at its weakest in constitutional cases because our mistakes cannot be easily corrected by ordinary legislation." Miller , 295 Kan. at 708, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (citing State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 [2007] ); see also Agostini v. Felton, 521 U.S. 203, 235, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (erroneous court interpretations in such cases "can be altered only by constitutional amendment or by overruling our prior decisions"); Watts, 376 S.W.3d at 644 (if people disagree with court interpretation of constitution, opportunity to change organic law more remote than opportunity to repeal, alter statute; " '[m]oreover, no set of judges ought to have the right to tie the hands of their successors on constitutional questions, any more than one [set of legislators] should those of its successors on legislative matters' ") (quoting Mountain Grove Bank v. Douglas County, 146 Mo. 42, 54, 47 S.W. 944 [ (Mo. 1898) ] ). And strict application of stare decisis must be tempered in constitutional cases because
"[o]ur allegiance must be to the Constitution itself, 'not what we have said about it.' Graves v. N.Y. ex rel. O'Keefe, 306 U.S. 466, 491-92, 59 S. Ct. 595, 83 L. Ed. 927 (1939) (Frankfurter, J., concurring); see also Harris v. Anderson, 194 Kan. 302, 314, 400 P.2d 25 (1965) (Fatzer, J., dissenting) (quoting 3 Warren, The Supreme Court in United States History, p. 470: ' "However the court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the court. 'To the decision of an underlying question of constitutional law no ... finality attaches. To endure, it must be right.' " ')." Miller , 295 Kan. at 708-09, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
A careful examination of the majority opinion in Miller and the precedent it relied on reveals that application of a quid pro quo test to section 5 claims rests on a shaky foundation.
"The [ Miller majority] relies on Kansas Malpractice Victims Coalition and Samsel II , both of which applied the quid pro quo test to excuse impairment of the right to jury trial. Samsel II, 246 Kan. at 358, 362 [789 P.2d 541] ; Kansas Malpractice Victims Coalition, 243 Kan. at 344-52 [757 P.2d 251]. Samsel II followed Kansas Malpractice Victims Coalition on this point, Samsel II, 246 Kan. at 351-62 [789 P.2d 541] ; and Kansas Malpractice Victims Coalition, in turn, relied on Manzanares [ v. Bell , 214 Kan. 589, 522 P.2d 1291 (1974) ], saying that Manzanares 'found, in substance, that the injured person entitled to benefits under the statute received a sufficient quid pro quo for the limitation placed on his right to a jury trial.' Kansas Malpractice Victims Coalition, 243 Kan. at 344 [757 P.2d 251]. In none of these three cases, however, did this court see fit to explain how or why the quid pro quo test, a due process-based rule originally relating to whether legislation impairs a vested right, can excuse legislation's impairment of a constitutional right to jury trial.
"Moreover, it appears that the initial reliance Kansas Malpractice Victims Coalition placed on Manzanares in order to apply quid pro quo arose out of a misreading. Nowhere in Manzanares ' one-paragraph discussion of the right to jury trial claim before it did this court 'require that the legislature provide an adequate substitute of the right to trial by jury[.]' Note, Testing the Constitutionality of Tort Reform with a Quid Pro Quo Analysis: Is Kansas' Judicial Approach an Adequate Substitute for a More Traditional Constitutional Requirement? , 31 Washburn L.J. 314, 332 (1992)." Miller , 295 Kan. at 709, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In addition, application of a quid pro quo test to section 5 claims cannot be bolstered by reaching still farther back to Shade v. Cement Co. , 93 Kan. 257, 144 P. 249 (1914).
" Shade involved multiple constitutional challenges to the original workers compensation law. The claims were based on federal due process and equal protection, and on the Kansas Constitution Bill of Rights' Section 5 right to jury trial and Section 18 right to remedy. Shade, 93 Kan. at 258-59 [144 P. 249]. Shade 's notable pithy rationale for rejecting these claims lumps the state constitutional theories together; and the only thing it makes clear is the determinative weight given to the elective nature of the original workers compensation system.
" 'The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases. The same is true of the arbitration feature and the rules for determining compensation. Without reviewing seriatim all the specific objections made to this statute under the general charge that it violates constitutional safeguards, it is sufficient to say that they have all been met in judicial decisions in other jurisdictions after the most thorough and patient examination. ... Briefly, it may be said that the operation of the system of compensation provided by the statute rests upon the free consent of employer and employee, given in the manner provided by the act. Without such consent on his part the employee retains all his remedies under common and statutory law. It is a matter of election.' 93 Kan. at 260, 144 P. 249 (citing Matheson v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71 [ (Minn. 1914) ] [election to be subject to system constitutes waiver of jury trial]; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N.E. 211 [ (1914) ] [same] )." Miller , 295 Kan. at 710, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
It is inaccurate to say that Shade applied the quid pro quo test to reject the section 5 challenge, as we have previously recognized in multiple cases. See Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P.2d 284 (1937) (260 emphasizing workers compensation system " 'rests upon the free consent of employer and employee' "; thus "the liability of an employer to his employee under the act is a liability arising on contract") (quoting Shade , 93 Kan. at 260, 144 P. 249 ); Potocan v. Hamilton Coal & Mercantile Co., 120 Kan. 326, 329, 243 P. 537 (1926) (citing Shade, 93 Kan. 257, 144 P. 249, for proposition Workers Compensation Act subject to no constitutional infirmity because not compulsory); Smith v. Packing Co., 115 Kan. 874, 875, 225 P. 110 (1924) ("[Q]uestions as to whether various features of a workman's compensation act were violative of the fourteenth amendment have frequently been disposed of by reference to the fact that its application was made optional.") (citing Shade , 93 Kan. at 260, 144 P. 249 ).
Other courts and commentators discussing Shade have reached similar conclusions about its underlying rationale. See Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 429, 580 P.2d 1366 (1978) (first case to consider Shade since workers compensation system made mandatory, court cites Shade among cases upholding earlier system "against constitutional challenges on the ground that it was optional with the employer and employee"); see also Middleton v. Texas Power & Light Co., 249 U.S. 152, 160, 39 S. Ct. 227, 63 L. Ed. 527 (1919) (citing Shade for upholding act because voluntary); Mosely v. Empire Gas & Fuel Co., 313 Mo. 225, 233-34, 281 S.W. 762 (1926) (same); Harbis v. Cudahy Packing Co., 211 Mo. App. 188, 191, 241 S.W. 960 (1921) (observing "Kansas courts have held that the relation between employer and employee" under workers compensation law "is contractual") (citing Shade , 93 Kan. at 260, 144 P. 249 ); Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309, 1330 n.92 (2003) ("Decisions to uphold the statutes frequently were based on the fact that the employee or employer, or both, had the ability to opt out of the scheme.") (citing Shade , 93 Kan. 257, 144 P. 249 ); Comment, Workers' Compensation Benefits Go From Bad to Worse: The Kansas Supreme Court Eliminates the Parallel Injury Rule, 48 Washburn L.J. 705, 710 n.42 (2009) (describing Shade as upholding original workers compensation law on ground that employers, employees consented to coverage). Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983), is even weaker support for the Miller majority's application of a quid pro quo test for section 5 analysis. That case did not "explicitly" apply the test in considering a jury trial challenge.
"The only issue in Rajala was whether the workers compensation law's abrogation of fellow-employee liability violated the Section 18 right to remedy provision. Rajala, 233 Kan. at 441-42, 661 P.2d 1251. Likewise, the ... citation of Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997), and Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012), for their discussion of the exchanges of rights and remedies between employers and employees inherent in the Kansas workers compensation scheme cannot help [the Miller majority]. These cases did not have anything to do with a jury trial challenge to the scheme. Thus neither ... stands for[ ] the proposition that the quid pro quo test can be applied to rescue a statute from its violation of Section 5." Miller , 295 Kan. at 711-12, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In short, none of the Kansas cases relied upon by the Miller majority as controlling precedent for using the quid pro quo test on section 5 challenges withstands scrutiny.
" Manzanares , Kansas Malpractice Victims Coalition , and Samsel II give no explanation ... of why the due process-based concept should be imported from Section 18. Furthermore, ... efforts to press Shade and Rajala into service as substitutes for Manzanares, Kansas Malpractice Victims Coalition , and Samsel II are singularly unconvincing. Shade relied on an entirely different rationale to reject the jury trial and the other state constitutional challenge to the original workers compensation system before the court. Rajala did not involve any jury trial challenge at all. Under these circumstances ... application of the quid pro quo test to Section 5 was originally erroneous and remains so." Miller , 295 Kan. at 712, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
The Miller majority also asserted that the cost-benefit analysis involved in evaluating the wisdom of following precedent favored application of a quid pro quo test to analysis of section 5 claims. In its view, "overruling our past application of the quid pro quo test to excuse violation of the right to jury trial would require dismantling of the workers compensation and no-fault automobile insurance systems. See Rajala, 233 Kan. at 440, 661 P.2d 1251 (workers compensation); Manzanares, 214 Kan. at 589, 522 P.2d 1291 (no-fault)." Miller , 295 Kan. at 712-13, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But the dismantling of those two systems was far from assured for several reasons.
"First, as discussed above, Rajala was a Section 18 decision that did not address the right to jury trial in any way. See Rajala, 233 Kan. at 441, 661 P.2d 1251. Nothing about refusal to apply the quid pro quo test to save a statute impairing the right to jury trial has any bearing on Rajala 's Section 18 holding.
"Second, the comprehensive workers compensation system at issue in Rajala is totally distinct from the noneconomic damages cap applied to reduce [a plaintiff's damages under K.S.A. 60-19a02 ]. [C]ommon-law [personal-injury] cause[s] of action [as they] existed in 1859 [were] not wholly replaced with a comprehensive statutory scheme of compensation not employing jury trials at all. Far from it. ... [P]ersonal injury plaintiffs in Kansas are still required to file civil lawsuits; conduct necessary discovery; obtain required expert testimony; and prove negligence, causation, and damages to a jury by a preponderance of the evidence. The only thing changed by K.S.A. 60-19a02 is whether the district court judge can give effect to the jury's discharge of its constitutional assignment. In the workers compensation arena, although recoveries are fixed, they are directly proportional to the nature and extent of each claimant's injury and income. In addition, distinct Section 18 jurisprudence permitted wholesale abolition and replacement of a common-law cause of action because both sides received clear and comparable benefits from the legislative transaction. The new administrative system of no-fault compensation for injured workers left no common-law cause of action upon which Section 5's jury trial right could act. See Watts, [376 S.W.3d at 638 ] (constitutional right to jury trial contingent upon existence of civil action for damages). The cap [under K.S.A. 60-19a02 ] did nothing of the sort, and its rejection on Section 5 grounds would not cause the collapse of the workers compensation system, much less make it inevitable or imminent.
"Much of the same can be said of the no-fault automobile insurance system. It is markedly distinct from the damages cap at issue here. In order to receive prompt personal injury protection payments after a car accident, an injured person no longer needs to file a lawsuit to prove another's fault and the causal relationship between that fault and damages. Rather, the personal injury protection claimant simply submits a claim to the insurance company. The third-party common-law cause of action for those suffering relatively minor injury was replaced with a first-party insurance contract claim. As with workers compensation, the no-fault automobile insurance system means that every claimant's opportunity to recover is directly proportional to the seriousness of his or her case." Miller , 295 Kan. at 713-14, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
In addition to overstating the potential cost of abandoning the quid pro quo test in section 5 cases, the Miller majority also overestimated the benefits of saving K.S.A. 60-19a02. It asserted that applying the quid pro quo test "foster[ed] certainty." 295 Kan. at 714, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). But continuing to apply quid pro quo to section 5 does exactly the opposite.
"Uncertainty is created when error is compounded by blind adherence to precedent that is analytically unsound. Certainty, predictability, stability, and respect for the rule of law are enhanced when this court does what it has otherwise insisted upon doing in every other case calling a legislative act into constitutional question. This is what every Kansan expects of us, and properly so. 'We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.' Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis. 2d 60, 121, 665 N.W.2d 257 (2003). That is why '[i]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations.' Barden v. Northern Pacific Railroad, 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894) ; see also Watts, [376 S.W.3d at 645 ] ('[d]eviations from clear constitutional commands-although longstanding-do not promote respect for the rule of law') (quoting Independence-Nat. v. Independence School, 223 S.W.3d 131, 137 [ (Mo. 2007) ] )." Miller , 295 Kan. at 714, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part).
Kansas' section 5 right to jury trial is distinct in every conceivable dimension from the section 18 due process-based right to remedy. They share no language; they share no drafting rationale. Indeed, the rights' placement in separate sections of the Bill of Rights makes it obvious that they articulate different concepts aimed to achieve different purposes, and thus merit unique analyses.
Finally, looking beyond our state borders, we note that, at the time Miller was decided, 19 states had addressed whether damages caps violated their state's constitutional jury protections, and not one had employed the quid pro quo test in its analysis. See 295 Kan. at 701-02, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part) (collecting cases). Since the Miller decision, the Oregon Supreme Court has reversed its position in 1999's Lakin v. Senco Products, Inc. , 329 Or. 62, 987 P.2d 463 (1999), upholding rather than striking down a damages cap under the Oregon Constitution's jury trial provision. See Horton v. Oregon Health and Science Univ. , 359 Or. 168, 376 P.3d 998 (2016). It did not, however, rely on a quid pro quo test to reach the new outcome. On this point of law, Kansas has stood strangely alone.
For all of the reasons outlined above, we abandon the quid pro quo test for analyzing whether the noneconomic damages cap is unconstitutional under section 5 of the Kansas Constitution Bill of Rights.
Fact-Law or Fact-Policy Distinction
Because the Miller majority concluded that K.S.A. 60-19a02 satisfied the quid pro quo test, it did not need to engage in an exhaustive discussion of the more basic question of whether the damages cap infringes on section 5's right to trial by jury. It merely conceded quickly that the cap "encroaches" upon the jury trial right and moved to the quid pro quo analysis to excuse what would otherwise have been a fatal constitutional violation. As discussed in the concurring and dissenting opinion in Miller , the "encroachment" conclusion is logically and legally indistinguishable from a conclusion that the cap impairs the jury trial right of section 5 and is thus unconstitutional, and it should have ended the matter. See 295 Kan. at 698, 289 P.3d 1098 (Beier, J., concurring in part and dissenting in part). It still should and does. We pause, however, to acknowledge and reject one further argument advanced by the Attorney General.
The Attorney General urges us to uphold the damages cap because of what he and other states have characterized as a fact-law or fact-policy distinction. For example, in Virginia, the Supreme Court has said,
"The resolution of disputed facts continues to be a jury's sole function. 'The province of the jury is to settle questions of fact, and when the facts are ascertained the law determines the rights of the parties.' Thus, the Virginia Constitution guarantees only that a jury will resolve disputed facts.
"Without question, the jury's fact-finding function extends to the assessment of damages. Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law to the facts.
"The [damages cap] does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function. Thus, [the damages cap] does not infringe upon the right to a jury trial because the section does not apply until after a jury has completed its assigned function in the judicial process.
"... [A]lthough a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment. [Citations omitted.]" Etheridge v. Medical Center Hospitals , 237 Va. 87, 96, 376 S.E.2d 525 (1989).
The fact-law or fact-policy distinction has been relied on in varying degrees by almost all courts that have upheld damages caps in the face of jury trial-based challenges. See Evans ex rel. Kutch v. State , 56 P.3d 1046, 1050-51 (Alaska 2002) (decision to place cap on damages policy choice, not reexamination of factual question of damages determined by jury); Kirkland v. Blaine County Medical Center , 134 Idaho 464, 469, 4 P.3d 1115 (2000) (jury still allowed to act as fact-finder in personal injury cases; cap statute simply limits legal consequences of jury finding); Johnson v. St. Vincent Hospital, Inc. , 273 Ind. 374, 401, 404 N.E.2d 585 (1980) (to extent of cap, right to have jury assess damages still available), overruled on other grounds by In re Stephens , 867 N.E.2d 148 (Ind. 2007), and abrogated on other grounds by Collins v. Day , 644 N.E.2d 72 (Ind. 1994) ; Peters v. Saft , 597 A.2d 50, 53-54 (Me. 1991) (party does not have right to jury determination of any question desired; right to jury determination only of questions of fact that substantive law makes material); Murphy v. Edmonds , 325 Md. 342, 373, 601 A.2d 102 (1992) (Legislature did not attempt to transfer traditional fact-finding function of jury to judge; instead it abrogated any cause of action for noneconomic damages in excess of damages cap); English v. New England Medical Center , 405 Mass. 423, 426, 541 N.E.2d 329 (1989) (jury trial guarantee does not grant party right to put to jury any question he or she wishes, right "means that, with respect to those questions of fact that the substantive law makes material, the party has the right to have the determination made by a jury"); Gourley v. Nebraska Methodist Health Sys., Inc. , 265 Neb. 918, 953-54, 663 N.W.2d 43 (2003) (jury's primary function of fact-finding includes damages; court's primary function to apply law to facts; damages cap implicates remedy, availability of remedy raises question of law); Tam v. Eighth Jud. Dist. Ct. , 358 P.3d 234, 238 (Nev. 2015) (not role of jury to determine legal consequences of its findings); Arbino v. Johnson & Johnson , 116 Ohio St. 3d 468, 476, 880 N.E.2d 420 (2007) (court simply applies limits as matter of law to facts found by jury); Judd v. Drezga , 103 P.3d 135, 144 (Utah 2004) (jury's duty to determine damages; court's duty to conform jury's finding to applicable law); see also Matter of Certif. of Questions of Law , 544 N.W.2d 183, 203 (S.D. 1996) (jury renders decision on damages, cannot mandate compensation as matter of law; unconstitutional on other ground). Although it did not expressly couch its decision in terms of a fact-law or fact-policy distinction, the Oregon Supreme Court implicitly followed a similar route in 2016's Horton . 359 Or. at 250, 376 P.3d 998. It held that the Oregon Constitution "guarantees litigants a procedural right to have a jury rather than a judge decide those common-law claims and defenses that customarily were tried to a jury" but does not "impose[ ] a substantive limit on the legislature's authority to define the elements of a claim or the extent of damages available for a claim." 359 Or. at 250, 376 P.3d 998.
The lone exceptional rationale among decisions that have upheld a damages cap challenged under a state constitutional jury trial provision challenge appears to be that in Robinson v. Charleston Area Med. Center , 186 W. Va. 720, 731, 414 S.E.2d 877 (1991). In Robinson , the West Virginia Supreme Court of Appeals focused on a "reexamination" clause incorporated in the statement of the constitutional jury trial right. See W. Va. Const. art. 3, § 13 ("No fact tried by a jury shall be otherwise reexamined in any case than according to the rule of court or law."). Because that clause did not mention the Legislature, the legislatively mandated damages cap did not infringe on the jury trial right. 186 W. Va. at 731, 414 S.E.2d 877.
The decisions from 14 of our sister states that have upheld damages caps under attack for violating constitutional jury trial protections do not persuade us.
First, only 8 of the 14 interpreted and applied constitutional provisions including language similar to that of our section 5's "inviolate." See Kirkland , 134 Idaho at 466, 4 P.3d 1115 (Idaho) ; Johnson , 273 Ind. at 383, 404 N.E.2d 585 (Indiana) ; Gourley , 265 Neb. at 953, 663 N.W.2d 43 (Nebraska) ; Murphy , 325 Md. at 351 n.3, 601 A.2d 102 (Maryland; "inviolably preserved"); Tam, 358 P.3d at 238 (Nevada) ; Arbino , 116 Ohio St. 3d at 474, 880 N.E.2d 420 (Ohio) ; Horton , 359 Or. at 226, 376 P.3d 998 (Oregon) ; Matter of Certif. of Questions , 544 N.W.2d at 186 (South Dakota). These eight decisions compose a small majority when compared to those of the highest courts of five states that have struck down damages caps as unconstitutional under constitutional provisions that make the jury trial right "inviolate." See Moore v. Mobile Infirmary Ass'n , 592 So. 2d 156, 159 (Ala. 1991) (Alabama); Smith , 507 So. 2d at 1089-90 (Florida; reading access right in conjunction with jury trial right); Atlanta Oculoplastic Surgery, P.C. , 286 Ga. at 733, 691 S.E.2d 218 (Georgia) ; Watts , 376 S.W.3d at 637 (Missouri) ; Sofie , 112 Wash. 2d at 638, 771 P.2d 711 (Washington).
Second, we simply cannot square a right specially designated by the people as "inviolate" with the practical effect of the damages cap: substituting juries' factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of actual damages. See Moore , 592 So. 2d at 164 ("Because the statute caps the jury's verdict automatically and absolutely, the jury's function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status."). Although, as a purely technical, theoretical matter, we agree that the mere application of an existing damages cap to reduce a jury's award is a matter of law, this statement begs the question at the heart of this case: To whom have the people of Kansas assigned the determination of the amount of the award? Unless an injured party has decided to waive his or her right under section 5, the answer is "the jury."
The Washington Supreme Court has addressed the jury's unique role in determining "ultimate facts," such as damages, and the particular importance of its role in determining noneconomic damages.
" 'To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts-and the amount of damages in a particular case is an ultimate fact.'See also Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889) (Act of 1883, creating a scheme for determining the value of train-killed animals by appraisers, was unconstitutional because it denied the right to a jury trial); Worthington v. Caldwell, 65 Wash. 2d 269, 273, 396 P.2d 797 (1964) ('Questions of damages should be decided by the jury'). [Citations omitted.]
"The jury's role in determining noneconomic damages is perhaps even more essential. In Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wash. 2d 831, 835, 699 P.2d 1230 (1985), the husband of a woman who died painfully 35 hours after giving birth, the result of medical malpractice, brought a wrongful death and survival action. The only issue before this court was whether the trial judge had properly reduced the jury's damage verdict of $ 412,000 for the woman's pain and suffering. In resolving the issue in the plaintiff's favor, we stated: 'The determination of the amount of damages, particularly in actions of this nature, is primarily and peculiarly within the province of the jury, under proper instructions ...' (Italics ours.) 103 Wash. 2d at 835 [699 P.2d 1230]. See also Lyster v. Metzger, 68 Wash. 2d 216, 224-25, 412 P.2d 340 (1966) (issue of damages, here primarily noneconomic, is within the jury's province); Power v. Union Pac. R.R., 655 F.2d 1380, 1388 (9th Cir. 1981) (under Washington law, damages for loss of companionship determined by trier of fact).
"United States Supreme Court jurisprudence on the Seventh Amendment's scope in civil trials, while not binding on the states, also provides some insight. In Dimick v. Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603 (1935), the Court used historical analysis to determine whether the Seventh Amendment allowed additur. Citing cases and treatises dating from the time of the amendment's adoption, the Court found that determining damages, as an issue of fact, was very much within the jury's province and therefore protected by the Seventh Amendment. The Court also indicated that a judge should give more deference to a jury's verdict when the damages at issue concern a noneconomic loss. The Court quoted the English case of Beardmore v. Carrington, 2 Wils. 244, 248:
" 'There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal ...'
293 U.S. at 479, 55 S. Ct. at 298. The Court clarified the implications of the difference between these two classes of actions by quoting from Mayne's Treatise on Damages, at 571: ' "in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it." ' 293 U.S. at 480, 55 S. Ct. at 298." Sofie , 112 Wash. 2d at 646-47, 771 P.2d 711.
Finally, we recognize that the people's assignment of the jury's role in assessing damages furthers the purpose of awards to make the particular injured party whole. See 22 Am. Jur. 2d, Damages § 28 ("The point of an award of damages, whether it is for breach of contract or for a tort, is, so far as possible, to put the victim where he or she would have been had the breach or tort not taken place."). Blackstone recognized this principle in his commentaries. "Now, as all wrongs may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right whereof the party injured." 3 Blackstone, Commentaries on the Laws of England, at *116 (1765). Ideally, this would be "effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner." 3 Blackstone, at *116. But where this was not a possible or adequate remedy, the injured party should receive "pecuniary satisfaction in damages ... to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury, though such right be not fully ascertained till they are assessed by the intervention of the law." 3 Blackstone, at *116. The jury's traditional role in determining the amount of a pecuniary award necessary to make a party whole includes an assessment of noneconomic damages. See Atlanta Oculoplastic Surgery, P.C. , 286 Ga. at 735, 691 S.E.2d 218 (noneconomic damages long recognized as element of total damages in tort, citing Blackstone).
Regardless of whether an existing damages cap is technically or theoretically applied as a matter of law, the cap's effect is to disturb the jury's finding of fact on the amount of the award. Allowing this substitutes the Legislature's nonspecific judgment for the jury's specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate. Thus we hold that the cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.
CONCLUSION
For the reasons outlined above, we reverse the decision of the Court of Appeals affirming the district court and reverse the district court's judgment. We remand this case to the district court for further proceedings in keeping with this decision.
Nuss, C.J., not participating.
Stegall, J., concurring in part and concurring in judgment:
I agree with and join the majority of the court that today reverses the so-called "quid pro quo" test as applied in the context of a section 5 challenge under the Kansas Constitution Bill of Rights. I agree that if an act of the Legislature invades the historic province of the jury to decide a contested matter then the plain, original public meaning of section 5 is violated. I join the portion of the majority opinion describing and applying the plain and original public meaning of section 5.
I disagree, however, with the way a plurality of the court appears to assume that K.S.A. 60-19a02 must implicate section 5 in the first place. To me, this is far from clear. Whether the statute implicates section 5 is a threshold question and the answer may depend on the standard of review we apply. For this reason, I first consider and discuss the history of our "clear error" standard of review and our recent partial departure from that rule. Finally, I conclude that though it is a close call, K.S.A. 60-19a02 does in fact invade the historic province of the jury to decide a contested matter. As such, I concur in the judgment we reach that K.S.A. 60-19a02 violates section 5.
Background
To clarify how I differ from the three-justice lead opinion in today's decision, some background explanation will be helpful. For ease of reference, I will refer to the lead opinion as simply the "majority," although it is a true majority only for those portions I have joined, and otherwise represents only a plurality of justices on this court. The importance of this distinction will become apparent.
As the majority explains, there is a clear difference between section 5 and section 18 in the Kansas Constitution Bill of Rights. Op. at 513. The section 5"right of trial by jury" that "shall be inviolate" is a procedural right to who decides contested questions in Kansas courts. It does not guarantee or prescribe the substantive matter of which questions Kansas courts can decide. A different provision of the Kansas Constitution-section 18-governs the latter. So the procedural right to have a jury (rather than, say, the Legislature) decide the kinds of contested questions juries historically decided is sacrosanct under the Kansas Constitution. But the substantive decision about what kinds of questions-in legalese, what causes of action-Kansas courts have the power to resolve is untouched by the section 5 guarantee. Put another way, just because a jury would have resolved a particular substantive question under Kansas common law in 1859 does not mean that a party has a constitutional right to a jury resolution of that question today. This is because the scope of contested questions that Kansas courts may answer can and does change-and this does not violate section 5.
Historically, which questions-which causes of action-Kansas courts have the power to resolve has been a matter of common law decision-making by Kansas courts. But it is a universally accepted principle that the Legislature has the power to abrogate or modify the common law. See, e.g., Manzanares v. Bell , 214 Kan. 589, 616, 522 P.2d 1291 (1974) ("[T]he Legislature has the power to modify the common law."). That is, the Legislature has the power to substantively change or even eliminate common law causes of action; or to create new statutory causes of action. See Shirley v. Glass , 297 Kan. 888, 893, 308 P.3d 1 (2013) ("Legislatures may create private causes of action that the common law did not recognize."); see also Stanley v. Sullivan , 300 Kan. 1015, 1018, 336 P.3d 870 (2014) ("As a general rule, statutory law supersedes common law."). With respect to civil remedies, the constitutional restraint on this legislative discretion is found in section 18 of the Kansas Constitution Bill of Rights. Put simply, so long as it does not run afoul of the Constitution, the Legislature has the power to describe and define which questions Kansas courts can resolve. And when those questions are of the kind historically given to juries to decide, section 5 only requires that those questions remain with Kansas juries.
Given this, the threshold question we should ask of K.S.A. 60-19a02 or any statute challenged under sections 5 and 18 is whether it is a procedural measure affecting who decides or a substantive measure affecting what is being decided . If it is the former, section 5 and its inviolate guarantee applies. If it is the latter, section 18-with its wider guard rails-applies.
Is K.S.A. 60-19a02 procedural or substantive?
The Attorney General gets at this key threshold determination-albeit obliquely-when he argues the so-called "fact-law" distinction. He urges us to adopt the rationale of the Virginia Supreme Court, which the majority also quotes:
"The [damages cap] does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function. Thus, [the damages cap] does not infringe upon the right to a jury trial because the section does not apply until after a jury has completed its assigned function in the judicial process." Etheridge v. Medical Center Hospitals , 237 Va. 87, 96, 376 S.E.2d 525 (1989) ; Op. at 521.
And indeed, some of our predecessors on this court have followed a similar analytical path. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 363, 789 P.2d 541 (1990) (McFarland, J., concurring).
In my view, the majority does not give enough careful attention to the argument that K.S.A. 60-19a02 does not implicate section 5 at all because it is a remedy provision that simply modifies an available cause of action-and should therefore be analyzed under section 18 instead of section 5. I am concerned the majority repeats the error (identified by then Justice McFarland in Samsel ) of "lumping together the right to trial by jury on the question of liability and the remedy to be afforded if liability is established, and then freezing the lump in a common-law time warp." 246 Kan. at 363, 789 P.2d 541 (McFarland, J., concurring). I agree with Justice McFarland that there is "no legal basis for including the scope of the remedy in the right to a jury trial. ... [T]he scope of the remedy to be afforded is a matter of legislative determination ...." 246 Kan. at 363, 789 P.2d 541 (McFarland, J., concurring).
In fact, the damage cap has some markings of both a procedural (who decides) and a substantive (what gets decided) measure. It cannot be both, and the constitutionality of the cap will likely turn on which category we assign it to. On the one hand, the effect of the cap is to substantively limit all causes of action for noneconomic damages. On the other hand, the cap is not written in the language of a modification of a personal injury cause of action. In fact, the cap does not take any question away from the jury or substantively alter its role at all. The very fact that the jury is permitted to "find" a phantom damage amount beyond the cap which is then "replaced" by the legislative judgment suggests the Legislature is actually substituting its decision for that of the jury.
Finally, K.S.A. 60-19a02(d)'s requirement that "the court shall not instruct the jury on the limitations of this section" is a clear indication to me that the Legislature sought to substitute its judgment for the judgment of the jury. Why else would the Legislature play hide-the-ball with something so consequential? Juries are told the substantive elements of the causes of action being tried in front of them. The legislative refusal to let the jury know about the damage cap tips the balance of consideration in my mind from a substantive modification of the cause of action to a procedural interference with the inviolate right to a jury protected by section 5. The Legislature that passed K.S.A. 60-19a02 wanted to achieve a substantive outcome without modifying the substantive cause of action. So, it decided to substitute its decision for that of the jury's. It changed who decides, not what is being decided.
There may be many reasons the Legislature took the procedural rather than the substantive route to achieve its policy goals. Perhaps the Legislature worried that straightforwardly modifying the substantive cause of action would incentivize juries to shift damage awards to other causes of action or categories of damages. Perhaps the political will did not exist to do directly what some believed could be accomplished procedurally.
So which category does K.S.A. 60-19a02 belong to? Answering this question, in turn, leads me to first consider our standard of judicial review.
De Novo or Clear Error Review?
The majority acknowledges the boilerplate standard of review we use to consider the constitutionality of a statute: "[B]efore a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it. If a court can find any reasonable way to construe the statute as valid, it must." Board of Johnson County Comm'rs v. Jordan , 303 Kan. 844, 858, 370 P.3d 1170 (2016).
But, citing our recent decision in Hodes & Nauser, MDs v. Schmidt , 309 Kan. 610, 680, 440 P.3d 461 (2019), the majority declines to apply this "clear error" rule of judicial review in today's case. Op. at 513. In Hodes , a majority of this court rolled back the presumption of constitutionality in cases involving "fundamental interests" under the Kansas Constitution. 309 Kan. at 673, 440 P.3d 461.
In this case, whether we review the constitutionality of K.S.A. 60-19a02 de novo, or with a presumption of constitutionality that can only be overcome if we have no reasonable doubt about the alleged constitutional violation, matters to the outcome. If I were to apply the presumption and its highly deferential standard of review, I would be forced to conclude that K.S.A. 60-19a02 is a substantive measure modifying an available cause of action in Kansas. Then I would consider whether this substantive modification of an available cause of action violated section 18. This outcome is mandated under our "clear error" standard of review because when "all doubts are resolved in favor of upholding" the statute the "constitutional violation" is not "clear." Board of Johnson County Comm'rs , 303 Kan. at 858, 370 P.3d 1170.
I have been-and remain-critical of judicial exercises in dividing up constitutional rights and provisions into preferred (fundamental) and less preferred (or even ignored) categories. See Hodes , 309 Kan. at 774, 440 P.3d 461 (Stegall, J., dissenting) ("[I]t is the courts' job to patrol boundaries, not to decide ... 'fundamental' or 'substantive' values."). I am even less enamored with the judicial practice of treating these categories differently as a matter of judicial review. See 309 Kan. at 720, 440 P.3d 461 (Stegall, J., dissenting) (critiquing the adoption of "judicially favored rights and a byzantine system of tiered scrutiny"). So I cannot agree with the proposition that we ought to exercise different standards of review depending on which part of the Constitution we are interpreting or enforcing. Even so, I am content, at present, to abandon our clear error standard of review in favor of de novo review in this case, as set forth by the majority. See op. at 513. The reason is two-fold. First, over my dissent in Hodes , de novo review in a case involving so-called "fundamental" rights is now controlling precedent in Kansas. Second, and more importantly, as discussed below, I suspect the infirmity in the precedent does not lie in going too far, but in not going far enough. Perhaps courts should exercise de novo review over Kansas statutes when any portion of our Constitution is implicated, not only when judicially favored rights are involved.
Thus, applying a de novo standard of review, I conclude the Legislature that passed K.S.A. 60-19a02 did not alter the cause of action for noneconomic damages but instead substituted its judgment for the jury's. As set forth in the majority opinion, this violates section 5 of the Kansas Constitution Bill of Rights.
Reconsidering the Clear Error Rule
I take this opportunity to question whether the clear error rule should be retained for any species of constitutional review in Kansas. Is it proper for this court to let statutes stand that probably-or even almost certainly-violate any part of the Kansas Constitution just because the violation is not clear or without any doubt? It is an important question that cuts to the heart of the judicial power itself. The parties, however, have not raised or argued the issue. Because resolving it in this case is unnecessary under the current precedent of this court, I will only embark on a skeletal discussion of the question which, by necessity, must arise in earnest sometime soon.
What I have been calling our "clear error" standard of review is often referred to as Thayerism in academic literature-named for Professor James B. Thayer after his 1893 article "The Origin and Scope of the American Doctrine of Constitutional Law " appeared in the Harvard Law Review. 7 Harv. L. Rev. 129 (1893) ; see Grey, Thayer's Doctrine: Notes on Its Origin, Scope, and Present Implications , 88 Nw. U. L. Rev. 28 (1993). After surveying the law of judicial review, Thayer concluded that courts "can only disregard the [statute] when those who have the right to make laws have not merely made a mistake, but have made a very clear one,-so clear that it is not open to rational question." 7 Harv. L. Rev. at 144.
Thayer's doctrinal formulation of what was otherwise an inchoate body of law received an early endorsement from the influential Supreme Court Justice Oliver Wendell Holmes. See Mendelson, The Influence of James B. Thayer upon the Work of Holmes, Brandeis, and Frankfurter , 31 Vand. L. Rev. 71, 73 (1978). Justice Holmes-often described as the father of modern era judicial restraint-once remarked that a judgment concerning constitutionality often "turns on the feeling of the community" and "we accept the judgment unless it makes us puke." Letter from Justice Holmes to Harold Laski (October 23, 1926), in Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1916-1935, pp. 887, 888 (Howe ed., 1953). Thus, Thayerism can be described as a kind of judicial puke test-is the law in question so unconstitutional that judges simply can't stomach it?
In Kansas, there is evidence that we at least acknowledged some form of Thayerism from our earliest days as a state. See State ex rel. Crawford v. Robinson and others , 1 Kan. 17, 27, 1862 WL 397 (1862) ("It has been repeatedly held, by the Supreme Court of nearly all the States of the Union, that no statute should be declared unconstitutional, unless its infringement of the superior law is clear, beyond substantial doubt."). There were also times we questioned the doctrine's relevance to our decision making. For example, in Comm'rs of Wyandotte Co. v. Abbott , 52 Kan. 148, 157, 34 P. 416 (1893), we noted that "[w]e appreciate the well-settled doctrine of this court, as, also, of the supreme courts of nearly all the states, that no statute should be declared unconstitutional unless the infringement of the superior law is clear, beyond substantial doubt." But even so, we declared that it would be " 'dangerous ... to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument.' " 52 Kan. at 157-58, 34 P. 416.
For most of our history, however, we have routinely recited some version of Thayerism as a constraining principle when reviewing the constitutionality of statutes. See Board of Johnson County Comm'rs , 303 Kan. at 858, 370 P.3d 1170 ("[B]efore a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it."); State v. Cook , 286 Kan. 766, 768, 187 P.3d 1283 (2008) ("We will not declare a statute unconstitutional as applied unless it is clear beyond a reasonable doubt that the statute infringes on constitutionally protected rights."); Moody v. Board of Shawnee County Comm'rs , 237 Kan. 67, 74, 697 P.2d 1310 (1985) ("A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt."); Hunt v. Eddy , 150 Kan. 1, 10, 90 P.2d 747 (1939) ("Statutes should not be declared unconstitutional unless the infringement of the superior law is clear beyond substantial doubt."); State v. Sherow , 87 Kan. 235, 239, 123 P. 866 (1912) ("This court has always endeavored to interpret acts of the legislature with the utmost liberality and to uphold them, unless beyond reasonable doubt they are found to conflict with some provision of the higher law. Doubts have always been resolved in favor of the statute.").
But we have never engaged in any sustained analysis of the constitutional roots of the rule or inquired whether Thayerism is proper under our government's constitutional structure. Simply put, the question is whether the "judicial power" vested by article 3, section 1 of the Kansas Constitution"exclusively in one court of justice" is limited by Thayerism. Do Kansas courts have the power to overturn statutes as unconstitutional even when the unconstitutionality is not clear beyond a reasonable doubt? As mentioned, answering this question is beyond the scope of today's opinion. But it is ripe for future litigation and review by this court. For now, four short thoughts will suffice.
First, deciding the proper measure of deference courts must show to the other branches of government implicates the separation of powers and thus our government's constitutional structure. I have noted before that the decline of "this court's separation of powers jurisprudence ... was aided in no small part by our application of judicial deference." Solomon v. State , 303 Kan. 512, 541, 364 P.3d 536 (2015) (Stegall, J., concurring). I criticized our court for invoking the presumption of constitutionality to uphold statutes we believed were unconstitutional, concluding that
"while judicial deference to the exercise of legislative or executive powers is entirely meet and proper, the same deference shown to the legislative or executive departments when they act outside of their respective vested powers is, in actual fact, an abdication of the vested judicial power to say what the law is.
....
"... I would return this court to the active judicial role and obligation to guard and protect a clear and strong wall of separation between each of the three great departments of government-keeping each within its proper province and protecting those provinces from colonization by the other two departments. It is within the judicial province to carefully exercise this power without deference to the other branches ...." 303 Kan. at 543, 545, 364 P.3d 536 (Stegall, J., concurring).
While not a direct assault on Thayerism, at a minimum this suggests the strong presumption of constitutionality undermines the bedrock constitutional principle of separation of powers. Here it must be noted that Thayer's presumption is distinct from the doctrine of constitutional avoidance, which is a rule of statutory construction that applies when a statute is ambiguous. See State v. Ryce , 303 Kan. 899, 966, 368 P.3d 342 (2016) (Stegall, J., dissenting) (distinguishing the constitutional avoidance doctrine, which preserves the Legislature's policy choices, from deference, which abdicates the judicial role), adhered to on reh'g 306 Kan. 682, 396 P.3d 711 (2017).
Second, to fully flesh out these arguments, it would be necessary to investigate the original public meaning of "the judicial power" at the time the Kansas Constitution was written and ratified. See State v. Riffe , 308 Kan. 103, 113-14, 418 P.3d 1278 (2018) (Stegall, J., concurring) (explaining the two basic tenets of original public meaning jurisprudence: that the Constitution's meaning is fixed at the time of its adoption and its meaning is based on the common understanding of the people adopting it). To date, the most thorough, though indirect, consideration of that question is found in my recent dissenting opinion in Hodes . Hodes , 309 Kan. at 707, 440 P.3d 461 (Stegall, J., dissenting).
In Hodes , I analyzed section 1 of the Kansas Constitution Bill of Rights at length, concluding that it was originally understood as a provision limiting the police power of the Legislature. 309 Kan. at 768, 440 P.3d 461 (Stegall, J., dissenting). I detailed how section 1 mandated judicial review of all legislative acts under a standard I colloquially called "rational basis with bite." 309 Kan. at 768, 440 P.3d 461 (Stegall, J., dissenting). Under this standard, "[a]pplying the necessary deference, a court must examine the actual legislative record to determine the real purpose behind any law in question before it can conclude the law is within the limited constitutional grant of power possessed by the State." 309 Kan. at 767, 440 P.3d 461 (Stegall, J., dissenting). Again, at least on the surface, it is difficult to square Thayerism with such review.
Third, justices on other state supreme courts have compellingly argued against the application of Thayerism in their jurisdictions. For example, in one notable concurrence, Justice Richard B. Sanders of the Washington Supreme Court rejected Thayerism because it lacked textual support in the constitution and denied citizens the protection of an independent and impartial judiciary. Island County v. State , 135 Wash. 2d 141, 955 P.2d 377 (1998) (Sanders, J., concurring). As Justice Sanders explained, " 'where the will of the legislature declared in its statute, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.' " 135 Wash. 2d at 157, 955 P.2d 377 (quoting The Federalist No. 78 [Alexander Hamilton] [May 28, 1788], reprinted in The Federalist Papers by Alexander Hamilton, James Madison and John Jay, pp. 395-96 [Garry Wills ed., 1982] ). For "it is the constitution, and only the constitution, through which the people speak for themselves. Their voice is fundamental, and it is only by their consent that we are governed." 135 Wash. 2d at 158, 955 P.2d 377. Similarly, Justice Rebecca Grassl Bradley of the Wisconsin Supreme Court warned, "[I]n contrast to the structural separation of powers our framers envisioned, judicial deference gives the legislature both the pen and the gavel over their own laws, and imposes a 'tremendous burden' on individuals attempting to limit the constitutional overreach of legislative power." Mayo v. Wisconsin Injured Patients and Families Compen. Fund , 383 Wis. 2d 1, 53, 914 N.W.2d 678 (2018) (Grassl Bradley, J., concurring) (quoting Burke, The "Presumption of Constitutionality" Doctrine and the Rehnquist Court: A Lethal Combination for Individual Liberty , 18 Harv. J.L. & Pub. Pol'y 73, 90 [1994] ).
Fourth and finally, it is important to concede that despite its weaknesses, Thayerism is not without its virtues. Chief among them is the pragmatic virtue of encouraging judges to resist an excess of judicial formalism. Judge Richard Posner has, perhaps, done the most convincing work on this point. Judge Posner helpfully contrasts Thayerism with the rise of constitutional "theory." The promise of constitutional theory has always been that theoretical principles, properly applied, will produce "correct" constitutional outcomes. Thayerism, however, is not designed to produce a single "right" answer, but is instead designed to aid judges who want to decide cases "sensibly or prudently." Posner, The Rise and Fall of Judicial Self-Restraint , 100 Cal. L. Rev. 519, 535 (2012).
Judge Posner attributes-rightly so in my view-the decline in Thayeristic judging (if not the decline of its rhetoric) to the rise of constitutional theory purporting to deliver correct outcomes. "The precondition to a judge's embrace of Thayer's standard ... is to have no theory of how to decide whether a statute or an executive action violates the Constitution. ... Today, with constitutional debate awash with theory, judges may feel a certain nakedness in having none." 100 Cal. L. Rev. at 538. So, if there is one, knowable, and correct answer to every constitutional question, the idea (implicit in Thayer's formulation) that a statute might or might not be constitutional loses most of its rhetorical heft and all of its analytical oomph.
Thus, on the one hand, Thayerism has declined in an atmosphere of increasing confidence that constitutional theory can give judges and scholars "the keys to unlocking the Constitution's secrets." 100 Cal. L. Rev. at 546. On the other hand, Thayerism suffers from what Posner calls the "ratchet theory of judicial restraint," which occurs when "unrestrained liberals expand constitutional rights" and "restrained conservatives preserve those rights by complying scrupulously with precedent in order to limit their own discretion." 100 Cal. L. Rev. at 547. In this environment, "[j]udicial self-restraint has ceased to be a contender." 100 Cal. L. Rev. at 548.
Of course, Thayerism is not the only nontheoretical principle that can restrain judges. And Judge Posner's definition of judicial pragmatism-a rejection of the formalist notion that "a legalistic algorithm" will produce a correct decision in "every case"-suggests other paths of self-restraint are available to adherents of constitutional theory. 100 Cal. L. Rev. at 539-40. Even originalist judges must exercise judgment . See Issacharoff, Pragmatic Originalism? , 4 NYU J.L. & Liberty 517, 531 (2009) ; but see Kramer, Two (More) Problems with Originalism , 31 Harv. J.L. & Pub. Pol'y 907, 907 (2008) ("there is no such thing as pragmatic originalism").
The warning to judicial theorists that we abandon prudent, sensible, and self-restrained judging at our and the Republic's peril should not fall on theoretically deafened ears. Yes, even a committed originalist ought to be "a jurist aware of his own humanity, attuned to the humanity of those before him, and willing to allow both to shape his judgment." Judge, Judges and Judgment: In Praise of Instigators , 86 U. Chi. L. R. (forthcoming Feb. 2019); see Riffe , 308 Kan. at 117, 418 P.3d 1278 (Stegall, J., concurring) ("[H]umility-attendant as it is to the indeterminacy of language and the difficulties of the interpretive process-must be considered a third, equally important leg of the originalist stool."). Prudential principals such as justiciability, judicial humility, a recognition of the limits of judicial competency, constitutional avoidance, respect for precedent, and the duty of candor when explaining our decisions all should play a role.
Conclusion
In short, applying de novo review to what I consider a difficult constitutional call, I am compelled by the unique characteristics of the damage cap, as I describe them above, to conclude that the Legislature has substituted its judgment for the judgment of the jury. While the policy ends sought by the Legislature may be acceptable, here, the Legislature has chosen means that section 5 forecloses. The Legislature remains free-within the bounds of section 18 -to limit or otherwise modify the common law cause of action for damages. But it must do so clearly and straightforwardly. Otherwise, the section 5 right is illusory, and the judgments of Kansas juries are no better than a mirage.
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The opinion of the court was delivered by Stegall, J.:
This is a tragic case of severe mental illness. In 2008, Howard Barrett attacked and killed a man who entered his apartment to exterminate bugs. The evidence at trial showed that Barrett suffered from schizophrenia and felt irrationally threatened by the victim. The key question for the jury was whether Barrett's mental condition precluded him from forming a culpable mental state.
In this appeal, Barrett argues the district court committed reversible error when it denied his request for an instruction on imperfect self-defense voluntary manslaughter-an intentional killing done with the unreasonable but honest belief that circumstances existed justifying deadly force. The Court of Appeals held the error was harmless under the so-called "skip rule." We disagree and hold the error is reversible because there is a reasonable probability that it affected the trial's outcome. In so holding, we revisit the skip rule and clarify that it is merely a logical deduction that may be reasonably considered as part of the applicable harmlessness test.
FACTUAL AND PROCEDURAL BACKGROUND
One morning in February 2008, Jeannette Hermann arrived at a small apartment building that she managed in Riley County. She was there to remind residents that an insect exterminator, Tom James, was on his way to treat the apartments. The building was exterminated once a month. As usual, Hermann had notified residents of the extermination by letter and had posted signs around the building a couple days beforehand.
Hermann arrived before the exterminator and began knocking on doors. She worked her way through the building top to bottom, ending with Barrett's apartment in the basement. She knocked loudly on Barrett's door, but he did not respond. So Hermann unlocked Barrett's door, went inside, and hollered that the exterminator was coming. She found Barrett in his bedroom sitting in a lawn chair, where he usually slept. Barrett said something to Hermann, but she did not understand his reply. Then Hermann left to go to the bank. As she left, James was on his way down to the basement apartments.
Hermann was gone about 10 minutes. When she returned to the apartment building, she was surprised to see James' truck still parked outside, so she went inside to find him. She checked Barrett's apartment first, because it was the last one James would have visited. She found James lying on the floor of Barrett's apartment, up against the front door. The door was partially open, but Hermann could not open it further because of James' body. She could not see Barrett but heard him "talking loudly but not really making sense."
Hermann got Barrett's next-door neighbor, Rick Stanley, to help. Stanley called 911 while Hermann waited outside for the police. Stanley told the 911 operator that Barrett attacked the "bug man," and the bug man was bleeding all over. He described Barrett as being "not real right in the head." Stanley later testified that when he peeked inside Barrett's apartment, he saw a man lying on the ground and blood all over the floor. He recalled that Barrett was mumbling incoherently at the time.
Barrett had called 911 just before Hermann arrived. Barrett told the operator that a man entered his apartment unexpectedly, walked into his bedroom, and came at him with a knife, pliers, and a "bug spray thing." Barrett said the man "is lying down here in a pool of blood," "doesn't have much chance of living," and "needs an ambulance and he needs a stretcher." The operator asked Barrett if he harmed the man. Barrett replied that yes, he did, because the man was "asking for a fight and asking for attacking," and Barrett had to defend himself.
Officer Julia Goggins was the first emergency responder to arrive at the scene. She asked Barrett to move James' body so she could get inside the apartment. Then she handcuffed Barrett and asked Stanley to wait with him in the hallway while she attempted lifesaving measures on James. But she soon realized that James was dead.
Law enforcement found two toolboxes and a bug spray unit near James' body. A bloody butcher knife was lying on top of a toolbox, and blood was spattered on the walls. They also discovered a knife set in the hallway leading to Barrett's bedroom. The set was still in its plastic packaging, but one knife was missing. The autopsy later revealed that James sustained five injuries from a sharp object. The two stab wounds to his chest were the cause of death.
Officer Goggins later described the scene as "gruesome": "There was blood on the walls, blood on the tools. It was very chaotic and there was just tools haphazardly tossed around the room. There was just a lot of blood." Officer Goggins did not ask Barrett questions while she investigated, but Barrett "kept saying that he was in his bedroom and when he woke up there was a guy in his apartment." She recalled that Barrett was mumbling a lot and difficult to understand, and she wrote in her report that he might be "mentally handicapped."
Officer Matt Gambrel arrived shortly after Officer Goggins. He took custody of Barrett and placed him in a patrol car. Officer Gambrel advised Barrett of his Miranda rights and then began to question Barrett. The interview lasted about five minutes.
Officer Gambrel asked what happened, and Barrett explained that his typewriter broke the night before and he stayed up all night trying to repair it. When Barrett awoke he found a man in his apartment. Barrett said he attacked the man with a knife because the man was in his apartment spraying for bugs without his permission. Barrett admitted that the apartment was sprayed for bugs often and it was possible the man had knocked on his door but he was sleeping too heavily to hear it. Officer Gambrel asked if it was also possible the man was just doing his job, and Barrett said that was possible.
The interview ended when the police captain told Officer Gambrel to stop because a detective would interview Barrett later. At that point, Officer Gambrel stopped asking questions, but Barrett kept talking, mostly about random topics. After a while, Barrett mentioned that he did not want the man to spray his apartment because he was afraid the chemicals would make him more aggressive or less intelligent.
Later that day at the Riley County police station, Detective William Schuck tried to interview Barrett but had significant trouble getting him to focus. The interview lasted about 10 minutes and was captured on video. As Detective Schuck explained the Miranda warnings, Barrett kept interrupting, mostly with tangential stories about his life. But he also made several statements about what happened that day. For example, Barrett said he had to protect himself from the person spraying hazardous chemicals and waste in his apartment. He also said the victim "went into my bedroom at me." When Detective Schuck finished the Miranda warnings, Barrett asked to speak to an attorney. At that point, Detective Schuck ended the interview.
The State charged Barrett with second-degree intentional murder the next day. When Detective Schuck informed Barrett about the charge, Barrett commented "that he did not shoot anybody" and he "just cut him."
A few days later, defense counsel requested a competency evaluation. The trial was delayed over six years because Barrett was not competent to stand trial. During that time, Barrett was civilly committed twice. The first time, Barrett was civilly committed until June 2010. That summer, the district court found Barrett competent to stand trial, but it was short-lived. In July 2010, Barrett refused to take his antipsychotic medication in jail, and his competency deteriorated. By spring 2011, the court found Barrett was incompetent again and civilly committed him a second time.
Before trial, Barrett filed two motions relevant to this appeal: (1) a motion to suppress the statements he made to law enforcement after receiving the Miranda warnings, and (2) a motion to dismiss the case on constitutional speedy trial grounds. In his motion to suppress, Barrett claimed his mental illness made his post-Miranda statements involuntary. The district court held a hearing where Officer Gambrel and Detective Schuck testified for the State and a psychiatrist testified for the defense. In the end, the court denied the motion, holding that Barrett's mental illness did not render his statements involuntary, absent evidence of coercive police activity.
The district court also held a hearing on Barrett's motion to dismiss. Defense counsel argued the State's failure to force-medicate Barrett when he refused to take his antipsychotic medicine in jail caused his incompetency, and thus the delay, after July 2010. Testimony established that Barrett refused his medication in July 2010; the jail did not force-medicate him; and the lack of medication likely caused him to lose his competency. However, the district court rejected Barrett's forced-medication argument and held his constitutional speedy trial rights were not violated because his incompetency caused the delay.
The case finally went to trial in November 2014. The parties did not dispute that Barrett killed James; that Barrett was suffering from untreated schizophrenia at the time of the killing; and that Barrett had been hospitalized for his mental illness before. Indeed, the expert witnesses agreed that Barrett had schizophrenia, which is "a psychotic disorder that is characterized by disturbance in thinking" or "broken thoughts." As one expert described, a person with schizophrenia often cannot "understand reality from non-reality" and suffers from hallucinations, delusions, or paranoia.
Thus, the key question for the jury was whether a mental disease or defect prevented Barrett from forming a culpable mental state. See K.S.A. 22-3220 ("It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged."). To answer this question, the parties presented an array of lay and expert witnesses to opine on Barrett's mental condition.
Hermann and a local banker, Anita Bassett, testified about their interactions with Barrett before the killing. Hermann explained that she had trouble understanding what Barrett said and that he exhibited odd behaviors, like taking apart appliances in his apartment. Bassett interacted with Barrett at the bank and around town. She recalled that Barrett told farfetched stories about his past, threw rocks at people, and showed signs of paranoia.
The defense presented two expert witnesses. Dr. William Albott, a clinical psychologist, examined Barrett in February 2008 and February 2011. He testified that schizophrenic conditions are not "steady states"; instead, a person with schizophrenia can make a coherent statement one hour and an incoherent one the next. He explained that forming criminal intent requires "some utilization of critical functioning, of critical judgment" but people with schizophrenia are "almost operating on raw instinctual urges." But, he added, they can form intent to start tasks.
Dr. Albott reported that in 2008, Barrett was "disorganized, nonresponsive to most of my interview questions"; his "thinking was tangential at best, rambling"; and he "did not make any sense." Dr. Albott believed that Barrett "probably popped out of his sleep state in a very disorganized manner" and was "maybe even floridly psychotic at that moment." Moreover, Dr. Albott hypothesized, Barrett's belief that someone tried to spray harmful chemicals at him could be part of his delusional paranoia. Ultimately, Dr. Albott concluded that during the killing "[Barrett's] functioning was psychotic, and ... he would not have a firm grasp on the realities that you and I might use to organize our lives."
Dr. Bradley Grinage, a forensic psychiatrist, examined Barrett a few months before trial. At that time, he believed Barrett was competent to stand trial because of medication. He testified that Barrett reported having auditory and visual hallucinations and showed signs of paranoid delusions that people were out to hurt him. However, Dr. Grinage disagreed with Dr. Albott about the vacillating nature of schizophrenia. Instead, he explained, "[I]f a person has an active psychotic process, it's not like you are going to be cogent and thinking one minute and psychotic the next and then back. ... [P]sychotic patients, unless it's drug induced, will stay in their acute psychotic phase until treated."
Dr. Grinage concluded that Barrett's actions were driven by the "kind of psychotic non-reality" that "puts the person a slave to that particular thought process and does not allow a willful, conscious desire." As Dr. Grinage explained, "[A] psychotic state like that robs a person of being able to make conscious, subjective decision or intention." He suggested there was no rational explanation for Barrett taking actions to defend himself-other than Barrett being psychotic and paranoid.
The State called Dr. William Logan, a psychiatrist, in rebuttal. Dr. Logan interviewed Barrett a few months before trial and reviewed his medical history. In his opinion, Barrett showed the capacity to form intent. For example, Barrett proved he was capable of planning activity because he was living independently; he called 911 and gave an accurate description of the victim and the circumstances; and he acknowledged that he had harmed the victim. Dr. Logan believed that Barrett's retrieval of the knife "indicates purposeful activity. [It was significant] not only that he got the knife but that he used it." Also, Dr. Logan explained, Barrett knew what was going on and why he harmed the man-he knew the man was there to exterminate bugs, and he did not want him spraying the apartment.
Thus, Dr. Logan concluded, although Barrett was "actively symptomatic" at the time, "there was nothing to indicate that [Barrett] was responding to command hallucinations or delusions that this individual in fact had it out for him in some unusual way. He said in fact the man was just doing his job." And, "despite some irrational thinking, there was also, at least in regard to this act, a fair amount of thinking that was intact."
The district court instructed the jury on intentional second-degree murder, reckless second-degree murder, and involuntary manslaughter, as well as the mental disease or defect defense. Defense counsel requested a voluntary manslaughter instruction, but the court denied it. The jury found Barrett guilty of reckless second-degree murder.
Barrett appealed, claiming the district court erred when it: (1) failed to give an imperfect self-defense voluntary manslaughter instruction; (2) denied his motion to suppress his post-Miranda statements; and (3) denied his motion to dismiss on constitutional speedy trial grounds. The Court of Appeals upheld the denial of the motion to suppress and the motion to dismiss. But the panel held the district court erred when it failed to give the voluntary manslaughter instruction. The panel majority determined this instructional error was harmless under the so-called "skip rule" because Barrett's conviction for reckless second-degree murder "logically foreclose[d] the possibility of a conviction for imperfect self-defense voluntary manslaughter," which required an intentional killing. State v. Barrett , No. 113767, 2016 WL 4262478, at *15 (Kan. App. 2016) (unpublished opinion). Judge Arnold-Burger dissented on this point, arguing the skip rule should not be applied here and the error was reversible. 2016 WL 4262478, at *18 (Arnold-Burger, J., dissenting).
We granted Barrett's petition for review of all three issues.
ANALYSIS
The district court committed reversible error when it failed to give an imperfect self-defense voluntary manslaughter instruction.
Barrett argues the district court committed reversible error when it denied his requested jury instruction on imperfect self-defense voluntary manslaughter. He claims the evidence reasonably showed he irrationally but honestly believed that a man was attacking him and he needed to defend himself. We agree a jury question was presented.
Generally, an appellate court reviewing a jury instruction challenge must determine whether the issue was preserved; whether the instruction was legally and factually appropriate; and whether any error was harmless. See, e.g., State v. Williams , 303 Kan. 585, 598-99, 363 P.3d 1101 (2016). Following this well-trod path, the panel held that (1) Barrett preserved the issue for review; (2) the district court erred when it omitted the imperfect self-defense voluntary manslaughter instruction; and (3) the error was harmless because of the skip rule. See 2016 WL 4262478, at *11-15. The panel's first two holdings are not before us because the State did not petition them for review. See State v. Torres , 308 Kan. 476, 481-82, 421 P.3d 733 (2018) ("[T]his court generally does not consider issues not raised in a petition for review or cross-petition."); Supreme Court Rule 8.03(i)(1) (2019 Kan. S. Ct. R. 53). Thus, our review is limited to the last and only contested holding-whether the error is reversible.
At oral argument, the parties agreed that the statutory harmless error standard applies. So "the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record." State v. Preston , 294 Kan. 27, Syl. ¶ 3, 272 P.3d 1275 (2012) ; see K.S.A. 60-261 ; State v. Ward , 292 Kan. 541, 565, 256 P.3d 801 (2011). Given this, the precise question becomes: Has the State proven there is no reasonable probability that the failure to give an imperfect self-defense voluntary manslaughter instruction affected the trial's outcome? We conclude the State has not met this burden, and, in reaching this decision, we revisit the "skip rule."
Originally, we described the skip rule this way: " 'When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured.' " State v. Horn , 278 Kan. 24, 43, 91 P.3d 517 (2004) (adopting the rule and coining the term for the first time in Kansas), overruled on other grounds by State v. Neighbors , 299 Kan. 234, 328 P.3d 1081 (2014). But in recent years, we clarified that the skip rule is not, in fact, a hard and fast rule. Instead, it is " 'simply a logical deduction that may be drawn from jury verdicts in certain cases.' " (Emphasis added.) State v. Plummer , 295 Kan. 156, 169, 283 P.3d 202 (2012). Moreover, we cautioned courts to make this deduction only where it "reasonably (as opposed to mechanically) applies." Williams , 303 Kan. at 600, 363 P.3d 1101 ; see State v. Pulliam , 308 Kan. 1354, 1370, 430 P.3d 39 (2018) (declining to "mechanically apply the skip rule").
For example, in Plummer we declined to apply the skip rule automatically "whenever a jury has rejected a higher severity level lesser included offense in favor of the charged crime" because:
"Such an application would essentially condone a district court's failure to instruct on a less severe lesser included offense for which there was 'some evidence,' even though the statute says that a 'judge shall instruct the jury as to the crime charged and any such lesser included crime.' (Emphasis added.) K.S.A. 22-3414(3). There is no readily discernible reason for a court-made rule which would emasculate the clear statutory mandate to instruct on all lesser included offenses that are supported by the evidence." 295 Kan. at 169, 283 P.3d 202.
In other words, the skip rule isn't a "rule" at all-it is a logical deduction that may support a finding of harmless error, along with the record in a particular case.
Here, the district court instructed the jury on intentional second-degree murder, reckless second-degree murder, and reckless involuntary manslaughter. But the court denied Barrett's request for an instruction on imperfect self-defense voluntary manslaughter, a lesser included offense of intentional second-degree murder. See, e.g., State v. Sims , 308 Kan. 1488, 1499, 431 P.3d 288 (2018). At the time of the crime, imperfect self-defense voluntary manslaughter was defined as "the intentional killing of a human being committed ... upon an unreasonable but honest belief that circumstances existed that justified deadly force." K.S.A. 21-3403(b). Ultimately, the jury found Barrett guilty of reckless second-degree murder.
The panel majority adopted the State's skip rule argument that "in order for the jury to have found Barrett guilty of imperfect self-defense voluntary manslaughter, the jury would have been required to find that the killing was intentionally done-a finding logically inconsistent with the jury's verdict finding Barrett guilty of reckless second-degree murder." Barrett , 2016 WL 4262478, at *14. The majority's approach was mathematical-it reasoned that if the jury already subtracted intent from the equation by rejecting intentional second-degree murder, then there was no intent left to support a conviction for a lesser intentional homicide. See 2016 WL 4262478, at *15. Along the way, the majority substituted the skip rule for a full harmlessness analysis.
But the skip rule is not a replacement for our longstanding harmlessness tests. See State v. Lowery , 308 Kan. 1183, 1216, 427 P.3d 865 (2018) (affirming that jury instruction challenges raised for the first time on appeal are reviewed for clear error); State v. Ward , 292 Kan. 541, 565-66, 256 P.3d 801 (2011) (defining the statutory and constitutional harmlessness tests). And it is not an automatic harmlessness pass. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test. In her dissent, Judge Arnold-Burger traced the history of the skip rule and correctly noted that we have often discussed the rule along with finding the evidence was insufficient to support the disputed instruction. 2016 WL 4262478, at *16 (Arnold-Burger, J., dissenting); see, e.g., State v. Engelhardt , 280 Kan. 113, 135-36, 119 P.3d 1148 (2005). We clarify today that for a jury instruction challenge, the touchstone of reversibility is the applicable harmlessness test. To the extent prior decisions have suggested otherwise, we provide the necessary corrective today.
Moreover, the skip rule is not amenable to mechanical (or mathematical) application because-as jury nullification and inconsistent verdicts suggest-juries can play a mitigating role in complex cases, such as this. As Judge Arnold-Burger astutely observed, an imperfect self-defense voluntary manslaughter instruction would have served as an alternative to the mental disease or defect defense, and the evidence could have reasonably supported either theory. Barrett , 2016 WL 4262478, at *17-18 (Arnold-Burger, J., dissenting). In other words, on the spectrum from an intentional second-degree murder verdict to a mental disease or defect acquittal, an imperfect self-defense voluntary manslaughter verdict would have fallen somewhere in the middle. In that scenario, the jury could have reasonably concluded that Barrett's mental illness affected his intent but did not negate his culpable mental state entirely.
We hold the failure to give the imperfect self-defense voluntary manslaughter instruction was not harmless because there is a reasonable probability that it affected the outcome of Barrett's trial. At trial, no one disputed that Barrett was suffering from untreated schizophrenia when he killed James. That much was clear. The key question was whether Barrett's mental illness prevented him from forming a culpable mental state. Under the definition applicable to Barrett, imperfect self-defense voluntary manslaughter was not just an intentional murder, but one based on "an unreasonable but honest belief that circumstances existed that justified deadly force." K.S.A. 21-3403(b). And the jury heard plenty of evidence that Barrett was unreasonably but honestly afraid that James was attacking him with harmful chemicals and tools.
For example, Barrett told the 911 operator that the man was asking for an attack, and he needed to defend himself. This is Barrett's first documented reaction to the crime, minutes after it occurred. Barrett also told Officer Gambrel that he was afraid the chemicals sprayed would harm his intelligence or make him more aggressive. Then Barrett insisted to Detective Schuck that "somebody just attacked me in the apartment" and "went into my bedroom at me." Experts later testified that Barrett suffered from persecution paranoia.
Thus, without an imperfect self-defense voluntary manslaughter instruction, "[t]he jury here was deprived of that critical aspect of the relevant criminal law and would not have been able to consider the requisite mitigation with respect to intentional second-degree murder." 2016 WL 4262478, at *18 (Arnold-Burger, J., dissenting). This error is reversible because the jury could have reasonably convicted Barrett of voluntary manslaughter. As a result, we reverse and remand for a new trial.
The district court did not err when it denied Barrett's motion to suppress.
Next, Barrett argues the district court erred when it denied his motion to suppress the statements he made after Officer Gambrel gave him the Miranda warnings because his mental illness rendered them involuntary. Precisely, he claims these statements were involuntary because he was in a psychotic state and could not understand what was going on at the time. He does not resurrect the other arguments for suppression that he made in the Court of Appeals. The State concedes that Barrett preserved the objection below.
We use a bifurcated standard to review a district court's denial of a motion to suppress: "We review factual findings for substantial competent evidence and exercise unlimited review over the ultimate legal conclusions." State v. Mattox , 305 Kan. 1015, 1053, 390 P.3d 514 (2017).
At the suppression hearing, Officer Gambrel and Detective Schuck testified about their interactions with Barrett. Officer Gambrel interviewed Barrett for five minutes in his patrol car outside the apartment building. Officer Gambrel recalled that Barrett was not upset, his demeanor was "pretty calm," and he did not appear to be under the influence of any substance. Officer Gambrel testified that Barrett made some strange statements but otherwise spoke coherently. Officer Gambrel also recalled that he read the Miranda rights aloud to Barrett, and Barrett acknowledged that he understood them. Then Barrett agreed to speak with Officer Gambrel.
Detective Schuck testified that he tried to interview Barrett for 10 minutes, but he had difficulty advising Barrett of his Miranda rights because Barrett kept interrupting with tangents about his life and comments about the killing. The video of the interview shows that Barrett was talking almost nonstop. When Detective Schuck finally finished explaining the Miranda rights, Barrett asked to speak to an attorney. At that point, Detective Schuck stopped asking questions and sent Barrett to the jail.
Dr. Grinage testified for the defense. He had reviewed Barrett's medical history and watched the interview with Detective Schuck. Dr. Grinage concluded that in the video, it was clear that "this defendant certainly could not know or understand or perceive what was going on around him such that he did not have the capacity to knowingly, intelligently, voluntarily waive his Miranda warnings." He believed that Barrett's statements were not the product of free will but of "an active, broken thought process."
The district court discussed these testimonies at length in its order denying Barrett's motion to suppress. The court found that "the only actual interrogation was the Gambrell [sic ] interview conducted in his patrol car"; at that time, Barrett was calm; and there was no evidence suggesting he had difficulty comprehending the questions or responding appropriately. But the court found that Barrett's "apparent comprehension and lucidity deteriorated" between the time Officer Gambrel gave him the Miranda warnings and Detective Schuck tried to interview him at the station. Finally, the court found there was no evidence of coercive police activity.
We conclude these findings accurately reflect the record and are backed by substantial competent evidence. The district court apparently gave greater weight to Officer Gambrel's testimony than to Dr. Grinage's testimony. But this court "do[es] not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact," and it "accept[s] as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court." State v. Reiss , 299 Kan. 291, 296, 326 P.3d 367 (2014).
The legal question at hand is whether Barrett's post-Miranda statements were voluntarily made. The State bears the burden to prove the voluntariness of Barrett's statements by a preponderance of the evidence. State v. Randolph , 297 Kan. 320, 326, 301 P.3d 300 (2013). "The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused," based on the totality of the circumstances. State v. Swanigan , 279 Kan. 18, Syl. ¶ 2, 106 P.3d 39 (2005). In this inquiry, we generally consider the following nonexclusive voluntariness factors:
"(1) the defendant's mental condition; (2) the duration and manner of the interrogation; (3) the defendant's ability on request to communicate with the outside world; (4) the defendant's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the defendant's fluency with the English language. Any one factor or a combination of factors may show that the defendant's statement was involuntary under the totality of the circumstances. [Citations omitted.]" State v. Walker , 308 Kan. 409, 421-22, 421 P.3d 700 (2018).
But here, Barrett contests just one factor: his mental condition. Thus, we must determine whether Barrett's mental state, alone, rendered his statements involuntary.
Barrett claims his post-Miranda statements were involuntary because he was " 'insane and incompetent' " when he confessed, like the defendant in Blackburn v. Alabama , 361 U.S. 199, 207, 80 S. Ct. 274, 4 L.Ed. 2d 242 (1960). In Blackburn , the defendant suffered from schizophrenic psychosis and committed a robbery during a period of unauthorized absence from a mental hospital. After his arrest, an Alabama court declared him to be insane and hospitalized him for treatment. At trial four years later, the defendant lodged an insanity defense and contested the voluntariness of his confession. Experts opined that the defendant was insane when he confessed. And the evidence revealed that law enforcement interrogated the defendant for 8-9 hours, and eventually, the sheriff drafted the written confession the defendant signed.
The United States Supreme Court held the defendant's confession was involuntary for two main reasons. One, "the evidence indisputably establishe[d] the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed." 361 U.S. at 207, 80 S.Ct. 274. And two:
"[W]hen the other pertinent circumstances are considered-the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn-the chances of the confession's having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious." 361 U.S. at 207-08, 80 S.Ct. 274.
But Blackburn is readily distinguishable from the facts before us. As our Court of Appeals persuasively explained:
"In the present case, Barrett was capable of independent living at the time he committed the offense for which he was convicted. The interview of Barrett conducted by Gambrel in his squad car, as well as the interview conducted at the police station, was relatively brief in comparison to the 8- to 9-hour interrogation in Blackburn . Finally, the statements that were admitted during Barrett's trial were Barrett's oral statements, not a written confession prepared by law enforcement and signed by the accused as in Blackburn . In short, the facts of this case are a long way from the egregious facts present in Blackburn ." Barrett , 2016 WL 4262478, at *9.
In addition, the State directs us to a more recent Supreme Court case, Colorado v. Connelly , 479 U.S. 157, 107 S. Ct. 515, 93 L.Ed. 2d 473 (1986), which is controlling. In Connelly , the defendant walked up to a police officer and said he murdered someone and wanted to talk about it because his conscience was bothering him. The officer gave the defendant the Miranda warnings, and the defendant confessed to the crime. The next day, the defendant became disoriented and talked about voices directing him to confess; the evidence later showed that the defendant was receiving command hallucinations. The Colorado Supreme Court held the confession was involuntary on this basis.
The United States Supreme Court reversed, holding that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." 479 U.S. at 167, 107 S.Ct. 515. The Court clarified that Blackburn did not rule that a deficient mental condition automatically renders a confession involuntary. Instead, Blackburn recognized that "police overreaching" was an "integral element" to finding that a confession was involuntary. 479 U.S. at 164, 107 S.Ct. 515. Thus, the Court declared that "while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." 479 U.S. at 165, 107 S.Ct. 515.
We have recognized Connelly as controlling precedent. See Randolph , 297 Kan. at 330, 301 P.3d 300 (citing Connelly for the rule that "it is well established that low intelligence alone does not preclude a finding that an accused knowingly and voluntarily waived his or her Miranda rights"); State v. Brown , 286 Kan. 170, 173, 182 P.3d 1205 (2008) ("In Connelly , the Court held that coercive police activity is necessary for finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment."). The district court was thus correct to follow Connelly and look for evidence of coercive police activity. Finding none, the district court ruled that Barrett's post-Miranda statements to police were voluntarily made. We agree. Barrett's statements were not rendered involuntary based on his mental condition alone, in the absence of coercive police activity. Therefore, we affirm the denial of his motion to suppress.
Barrett's constitutional speedy trial rights were not violated.
Lastly, Barrett claims the State's failure to force-medicate him, or at least do something more to medicate him, when he refused his antipsychotic medication in jail caused the trial to be delayed another four years, which violated Barrett's constitutional speedy trial rights. Though his road to trial was long, Barrett only contests the part from July 2010-onward, when he refused his medication in jail. After that, Barrett's competency deteriorated and he was civilly committed a second time, until he was competent to stand trial in 2014.
In Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed. 2d 101 (1972), the United States Supreme Court set forth a four-factor balancing test to determine whether a defendant's Sixth Amendment right to a speedy trial has been violated: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. 2182 ; see In re Habeas Corpus by Snyder , 308 Kan. 615, 619, 422 P.3d 1152 (2018). Here, the parties focus on one factor: the reason for the delay. As to the remaining factors, Barrett did not assert his right until the eve of trial, in September 2014, and the State admits that the length of delay is presumptively prejudicial.
We assume without deciding that the length of delay and prejudice factors weigh in Barrett's favor. But even so, we conclude Barrett's constitutional speedy trial rights were not violated because the sole reason for the delay after July 2010 was Barrett's incompetency. As we recently held in Snyder , "Delays attributable to a defendant's incompetency to stand trial do not infringe upon his or her Sixth Amendment speedy trial rights." 308 Kan. 615, Syl. ¶ 2, 422 P.3d 1152. To circumvent this, Barrett argues the State bore the burden to maintain his competency by either force-medicating him or by giving him some other, unspecified, medical attention.
In district court, defense counsel argued the State should have force-medicated Barrett to maintain his competency in jail, citing Sell v. United States , 539 U.S. 166, 123 S. Ct. 2174, 156 L.Ed. 2d 197 (2003), in support. In that case, the defendant was hospitalized at a treatment facility and refused the antipsychotic medicine necessary to make him competent for trial. The facility staff then sought permission to administer the medication against his will. On appeal, the United States Supreme Court recognized that defendants have "a 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.' " 539 U.S. at 178, 123 S.Ct. 2174 (quoting Washington v. Harper , 494 U.S. 210, 221, 110 S. Ct. 1028, 108 L.Ed. 2d 178 [1990] ). That said, the Court held a state could force-medicate a defendant under certain narrow circumstances:
"[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." ( Emphasis added.) 539 U.S. at 179, 123 S.Ct. 2174.
By its own terms, Sell does not stand for the rule that a state must force-medicate a defendant to maintain his or her competency for trial. On the contrary, Sell holds that a state may involuntarily medicate an incompetent defendant under narrow circumstances. We also agree with the State that "[t]he clear underpinning[ ] of Sell is that courts should proceed with caution before interfering with a person's liberty interest in refusing medication." And even more so here. Dr. Grinage testified about the dangerous, even life-threatening side effects from the medicine Barrett was taking. We reject the notion that the Sixth Amendment required the State to force-medicate Barrett with potentially life-threatening medication to maintain his competency to stand trial.
Barrett also argues, for the first time on appeal, that the State should have, at least, provided Barrett with more medical attention to help him take his medication. But we decline to speculate what more the State could have done without an evidentiary record on this point and without adequate briefing. See State v. McCullough , 293 Kan. 970, 999, 270 P.3d 1142 (2012) ("The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error."); see also Nguyen v. State , 309 Kan. 96, 108, 431 P.3d 862 (2018) ("Our general rule is that an issue not raised or briefed is deemed waived and abandoned."). Therefore, we affirm the denial of Barrett's motion to dismiss on speedy trial grounds.
In sum, we affirm the denial of Barrett's motion to suppress and his motion to dismiss. But we reverse and remand for a new trial because the district court failed to instruct the jury on imperfect self-defense voluntary manslaughter.
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Gardner, J.:
This appeal pertains to ongoing litigation between Terry Chamberlain Diehl (the executor for the estate of Barbara A. Mouchague) and Leonard and Patricia Kowalski, beneficiaries of Mouchague's trust. In addition to the probate case, the parties have been involved in three civil actions below which we need not detail. In this appeal, the Kowalskis claim the probate court erred in awarding attorney fees and expenses to Diehl resulting from one of the civil cases and for previously appealing that case-a case to quiet the Kowalskis' claim to the title and secure Mouchague's property as belonging to the estate. Diehl responds that the Kowalskis, as beneficiaries of Mouchague's trust but not of the estate being litigated in probate court, lack standing to bring this appeal. We agree, finding that the trustee is the proper party to bring an action affecting the trust and that the Kowalskis have not shown that the trustee breached its fiduciary duty so as to permit them to appeal instead of the trustee.
Diehl has also moved for an award of attorney fees incurred in defending this appeal. But she has failed to include in her affidavit the specific detail required by our Rule, so we deny that motion.
FACTUAL AND PROCEDURAL BACKGROUND
When Barbara A. Mouchague died in December 2012, Terry Chamberlain Diehl was appointed the executor of her estate. The sole beneficiary of the estate is the Barbara A. Mouchague Trust. The Country Club Trust Company serves as its trustee but is not a party to this appeal. The trust names four beneficiaries: Leonard Kowalski, Patricia Kowalski, and two charitable organizations. The parties to this appeal are Diehl, as the executor of Mouchague's estate, and the Kowalskis, who have an 80% equitable interest in the decedent's trust.
This appeal has a complicated history because in addition to the probate case, the parties have been involved in three underlying civil cases which the district court tried together. One of those cases is relevant here. In 14 CV 4300, Diehl, in her capacity as executor, sued to set aside a joint tenancy deed in the Kowalskis' and Mouchague's names and to quiet title in the estate when she was gathering estate property. The district court ruled in favor of Diehl on the quiet title action and then ordered the Kowalskis to pay Diehl's attorney fees and expenses of over $ 60,000. The Kowalskis appealed. This court reversed and vacated the fee award on appeal, finding that the fees could not be assessed against the Kowalskis because no contractual or statutory basis for doing so was shown. Diehl v. Kowalski , No. 114706, 2016 WL 6651575, at *4 (Kan. App. 2016) (unpublished opinion). The general rule thus applied that litigants are responsible for their own attorney fees. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees , 291 Kan. 266, 279, 241 P.3d 15 (2010). This court also stated that the fee award in the quiet title action was not a fee award in the probate proceeding and that the district court had expressly deferred ruling on fees in the probate case until the estate was closed. Kowalski , 2016 WL 6651575, at *1.
After this court vacated the award for attorney fees in the quiet title action, Diehl petitioned the probate court under K.S.A. 59-1717 for payment of those same fees and expenses. The district court again awarded Diehl the attorney fees and litigation expenses related to the quiet title action but this time assessed them against the decedent's estate instead of against the Kowalskis personally.
Diehl also petitioned the district court for an award of her attorney fees incurred in defending against the Kowalskis' appeal in the quiet title action- Kowalski , 2016 WL 6651575. The court at first denied Diehl's requested appellate attorney fees, holding that all legal fees and expenses incurred in an appeal must be addressed by appellate courts under Kansas Supreme Court Rule 7.07 (2019 Kan. S. Ct. R. 50). Diehl then sought her fees from the Kansas Court of Appeals under Rule 7.07 but was unsuccessful. She then petitioned the district court again for the award under K.S.A. 59-1717, and the district court awarded the fees.
The Kowalskis appeal, challenging the probate court's award of Diehl's attorney fees and expenses to pursue the quiet title action and to defend that award on appeal. They contend that Diehl cannot seek fees now because Diehl failed to appeal from the original fee award against the Kowalskis in 2015. Although the Kowalskis appealed that fee award, giving rise to the quiet title action, Diehl did not. The Kowalskis also argue that the probate court abused its discretion by not requiring proper segregation of fees, that the amount of fees the probate court awarded was excessive and unreasonable, and that the probate court lacked jurisdiction to award fees incurred on appeal.
We note that Diehl moved to strike the Kowalskis' notice of appeal because it stated that the appeal was being filed on behalf of the trustee and the other beneficiaries of the trust, but neither the Country Club Trust Company nor the beneficiaries other than the Kowalskis joined the appeal. The district court denied Diehl's motion to strike the appeal.
DO THE KOWALSKIS HAVE STANDING TO APPEAL THE DISTRICT COURT'S RULING IN THE ESTATE OF BARBARA MOUCHAGUE ?
Before we reach the Kowalskis' allegations of error in the probate court's award of fees and expenses, we must address Diehl's argument that the Kowalskis lack standing to appeal that award.
Standard of Review
Parties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, § 1 of the Kansas Constitution. See State ex rel. Morrison v. Sebelius , 285 Kan. 875, 895-96, 179 P.3d 366 (2008). The standing inquiry asks whether a party has a sufficient stake in the controversy to warrant invocation of jurisdiction and to justify the exercise of the court's remedial powers on that party's behalf. Board of Johnson County Comm'rs v. Jordan , 303 Kan. 844, 854, 370 P.3d 1170 (2016). The effect of this requirement is that standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time. See Cochran v. Kansas Dept. of Agriculture , 291 Kan. 898, 903, 249 P.3d 434 (2011). Whether a party has standing in a judicial action, like other jurisdictional issues, presents a question of law over which this court's scope of review is unlimited. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017).
At the pleading stage, the party asserting standing has the burden to establish a prima facie case of standing, that is, a basis when viewed in the light most favorable to the party. See In re Adoption of T.M.M.H. , 307 Kan. 902, 915-16, 416 P.3d 999 (2018) ; Aeroflex Wichita, Inc. v. Filardo , 294 Kan. 258, 264-65, 275 P.3d 869 (2012). The determination of jurisdiction and standing rests on the facts in existence at the time of filing. See Grupo Dataflux v. Atlas Global Group, L.P ., 541 U.S. 567, 580, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ("The time-of-filing rule is what it is precisely because the facts determining jurisdiction are subject to change, and because constant litigation in response to that change would be wasteful."); In re I.H.H.-L. , 45 Kan. App. 2d 684, 691, 251 P.3d 651 (2011).
Discussion
Our standing analysis focuses on statutory standing. Any heir, devisee, or legatee may prosecute or oppose the probate of a will. K.S.A. 59-2224 ; see Matter of Estate of Beason , 248 Kan. 803, 806, 811 P.2d 848 (1991). This restriction is narrower than dozens of Kansas statutes that, in other contexts, permit an appeal by an aggrieved person. See Friends of Bethany Place v. City of Topeka , 297 Kan. 1112, 1139-40, 307 P.3d 1255 (2013) (listing those statues). Neither the Kansas Probate Code nor the Kansas Uniform Trust Code allows an appeal by an aggrieved person. See generally K.S.A. Chapters 58a, 59.
The Kowalskis appear to be aggrieved here because each time the executor, Diehl, is awarded fees out of estate funds, fewer assets remain available in the estate to distribute to the Kowalskis as some of the beneficiaries of the trust. But neither Kowalski is, admittedly, an "heir, devisee, or legatee" of Barbara Mouchague's will, as the statute requires. K.S.A. 59-2224. Instead, the only beneficiary of the estate is the Barbara Mouchague Trust. Because the Kowalskis are not beneficiaries of the estate being litigated, Diehl argues that they lack standing to bring this appeal in the probate case.
The general rule
The parties agree that generally, the trustee-and not the beneficiary of the trust-is the proper party to sue or defend actions and claims affecting the trust. The parties have not addressed whether the estate's executor, Diehl, is a third party for purposes of this rule. We assume, without deciding, that she is.
This issue has not been addressed in Kansas cases. Cases from other jurisdictions reflect the general rule that the trustee, who has legal title to the res, has standing to sue a third party; the beneficiary does not even if the beneficiary is adversely affected.
" 'The trustee's standing to sue arises out of its legal title to the res. "The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account." [Citations omitted.]' " Naier v. Beckenstein, 131 Conn. App. 638, 646, 27 A.3d 104 (2011).
Because a trustee is the appropriate party to sue third parties on behalf of trust beneficiaries, beneficiaries generally lack standing to maintain this cause of action. See, e.g., Glassie v. Doucette , 157 A.3d 1092, 1099-1100 (R.I. 2017) ; Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp. , 699 S.W.2d 864, 874 (Tex. App. 1985).
The interest of the beneficiary of a trust is merely an equitable interest. "Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the trust property free of trust, the beneficiary cannot maintain an action at law against the third person." Restatement (Second) of Trusts § 281 (1959).
The commentary to § 281(1) explains:
"a. The interest of the beneficiary of a trust is an equitable interest, and ordinarily is protected by suits in equity rather than by actions at law....
"b. Tort claims . If a third person commits a tort with respect to the trust property, the beneficiary, if he is not in possession, cannot maintain an action at law against him....
"c. Contract claims . If a contract right is held in trust, the beneficiary cannot maintain an action at law against the promisor.
"d. Other claims . If a right other than for tort or in contract arises against a third person from the holding of title to the trust property, the beneficiary cannot maintain an action at law to enforce it." Restatement (Second) of Trusts § 281(1), comments a-d (1959).
Restatement (Third) of Trusts § 107(1), comment b (2012) reiterates this principle:
"As holder of the title to trust property ... and as the representative of the trust and its beneficiaries, the trustee is normally the appropriate person to bring ... an action against a third party on behalf of the trust.... [A] beneficiary has no standing to sue a third party on behalf of the trust."
See Bogert's The Law of Trusts and Trustees, § 869, at 112-16 (2d ed. rev. 1995) ("In the absence of special circumstances, the beneficiary is not eligible to bring or enforce these causes of action which run to his trustee. Thus in the usual case he cannot sue a third person to recover possession of the trust property for himself or the trustee, or for damages ....").
We recognize that treatises, restatements, and cases from other jurisdictions provide only persuasive authority and are not controlling here, but we are persuaded by them and believe it a sound practice to recognize this general rule, as well as its exception, which we discuss below.
The exception
The Kowalskis rely on an exception that permits the beneficiaries of the trust to act on behalf of the trust and the other beneficiaries in some cases.
The statutory approach
The Kowalskis cite a treatise to establish that the Country Club Trust Company has a duty to appeal adverse judgments if it would be unreasonable not to do so. They do not, however, specifically allege that the trustee breached any duty listed in the Kansas Uniform Trust Code.
Nonetheless, we find that such a duty may exist under Kansas statutes. Under our trust code, a trustee's violation of a duty the trustee owes to a beneficiary is a breach of trust. K.S.A. 58a-1001(a). The Kansas Uniform Trust Code charges the trustee with a duty to prosecute or defend legal actions to protect trust property. K.S.A. 58a-816(24). The extent of that duty is explained in the Restatement:
"The duty of protecting the trust estate includes taking reasonable steps to enforce or realize on other claims held by the trust and to defend actions that may result in a loss to the trust estate. Reasonable steps may include taking an appeal to a higher court, compromise or arbitration of claims by or against the trust, or even abandoning a valid claim or not resisting an unenforceable claim if the costs and risk of litigation make such a decision reasonable under all the circumstances ." (Emphasis added.) Restatement (Third) of Trusts § 76(2), comment d (2007).
Under this approach, the Kowalskis have the burden to show that the Country Club Trust Company's decision not to appeal the executor's fee award was unreasonable, considering all the circumstances.
The equitable approach
The Kowalskis also rely on an equitable approach outlined in the Restatement (Third) of Trusts § 107 (2012) :
"(1) A trustee may maintain a proceeding against a third party on behalf of the trust and its beneficiaries.
"(2) A beneficiary may maintain a proceeding related to the trust or its property against a third party only if:
(a) the beneficiary is in possession, or entitled to immediate distribution, of the trust property involved; or
(b) the trustee is unable, unavailable, unsuitable or improperly failing to protect the beneficiary's interest."
Under this approach, the Kowalskis, as beneficiaries of the trust, could maintain a proceeding related to the trust property (this appeal) if they show the trustee is improperly failing to protect their interest as beneficiaries. See Browning v. Brunt , 330 Conn. 447, 195 A.3d 1123 (2018) ; Slaughter v. Swicegood , 162 N.C. App. 457, 465, 591 S.E.2d 577 (2004).
This equitable right to sue for the benefit of a trust exists independently of the beneficiaries' rights under the Kansas Uniform Trust Code.
"In equity, trust beneficiaries may bring a suit for the benefit of a trust when the trustees refuse to do so. See Moore v. 1600 Downing Street, Ltd., 668 P.2d 16, 19 (Colo. App. 1983) (' "It is fundamental to the law of trusts that cestuis have the right "upon the general principles of equity" ... and "independently of [statutory] provisions ... to sue for the benefit of the trust on a cause of action which belongs to the trust if" the trustees refuse to perform their duty in that respect." ') (quoting Riviera Congress Assocs. v. Yassky , 18 N.Y.2d 540, 277 N.Y.S.2d 386, 223 N.E.2d 876, 879 [1966] ); see also Brown v. Dolese , 154 A.2d 233, 239 (Del. Ch. 1959) ('[A] trust beneficiary may sue if the trustee refuses to sue.'). Such a suit is analogous to a shareholder derivative suit on behalf of a corporation. See Velez v. Feinstein, 87 A.D.2d 309, 451 N.Y.S.2d 110, 114 (N.Y. App. Div. 1982)." Saunders v. Muratori , 251 P.3d 550, 553 (Colo. App. 2010).
Diehl suggested at oral argument that the Kansas Uniform Trust Code creates an exclusive, statutory remedy, which would preclude this equitable remedy, but neither party briefed that issue. Instead, we find that the Kowalskis could pursue this independent, equitable means of acting in place of the trustee if they show the trustee is improperly failing to protect their interest as beneficiaries.
DID THE KOWALSKIS SHOW THE COUNTRY CLUB TRUST COMPANY ACTED IMPROPERLY OR UNREASONABLY ?
The Kowalskis attempt to meet their burden by contending that the trustee of the Mouchague trust:
• refused to perform its duty to protect the trust property from Diehl's "repeated and improper" claims for fees;
• consistently declined to oppose or even question the fees submitted to the probate court by Diehl and her counsel;
• twice told them it would not appeal the lower court's award of fees to Diehl and her attorney; and
• failed to submit a brief in this appeal to explain how it is properly meeting its fiduciary duties.
But these arguments merely try to shift to the trustee the burden of showing the propriety of its acts. We believe the burden instead rests on the Kowalskis to show the acts that trigger the exception they invoke to the general rule-that the trustee is improperly failing to protect their interest. Clubb v. Hetzel , 165 Kan. 594, 601, 198 P.2d 142 (1948) (stating the " 'p]arty seeking to avail himself of any exception to general rule carries burden of establishing facts necessary to invoke provisions of exception,' " quoting Hunter v. American Ry. Express Co ., 4 S.W.2d 847 [Mo. App. 1928] ); see generally Keiswetter v. State , 304 Kan. 362, 368, 373 P.3d 803 (2016) (finding in Kansas Tort Claims Act cases that the State has the burden to establish it is immune from liability under an exception to the general statutory rule of liability); Messner v. Continental Plastic Containers , 48 Kan. App. 2d 731, 751, 298 P.3d 371 (2013) (holding in workers compensation cases that once the claimant shows a right to benefits, the burden shifts to the employer to show an exception barring compensation applies); cf. State v. Estrada-Vital , 302 Kan. 549, 552, 356 P.3d 1058 (2015) (noting in criminal cases that the burden of proof is on those seeking to invoke an exception to the general rule requiring a search warrant).
The Kowalskis offer no facts in support of their assertion that the trustee acted unreasonably or improperly by not appealing. Instead, they rely solely on the fact that the trustee did not appeal and on the assumption that the trustee has the burden to show how not opposing Diehl's many fee requests meets its fiduciary duty. We can deduce from the trustee's failure to file a timely appeal and its absence in these proceedings, that despite the Kowalskis' urging to do so, the trustee was unwilling to pursue an appeal on the trust's behalf against Diehl's fees. Yet nothing of record shows us why the trustee did not do so. The trustee was active in other matters even though it decided not to appeal, and it has a duty to consider the interests of all beneficiaries, not just the Kowalskis. Perhaps the trustee was unwilling to appeal because doing so would necessarily incur even more fees-or perhaps it reasonably believed an appeal would be futile-or perhaps the other beneficiaries of the trust directed it not to appeal. We do not know, yet we need to know so we can determine if the costs and risk of litigation make such a decision improper or unreasonable under all the circumstances.
The existing record does not resolve the material question of whether the trustee is improperly failing to protect the beneficiary's interest in the trust, which is the standard set out in Restatement (Third) of Trusts § 107(2), comment c, for allowing a beneficiary to proceed on its own. Nor does it show that the trustee's decision not to appeal the executor's fee award was unreasonable, considering all the circumstances. The Kowalskis have failed to meet their burden to show that the Country Club Trust Company failed in its fiduciary duties. As a result, the Kowalskis lack standing to appeal. That right remains solely with the trustee.
IS DIEHL ENTITLED TO ATTORNEY FEES FOR THIS APPEAL ?
After oral argument of this appeal, Diehl moved this court for statutory attorney fees in the amount of $ 12,519.75 for defending this appeal. The Kowalskis have filed no response to that motion.
In support of her motion, Diehl shows the court the following:
• under Rule 7.07(b) an appellate court may award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees;
• an attorney for an estate handled the defense of this appeal thus the trial court had the authority to award attorney fees under K.S.A. 59-1717 ;
• upon receiving the Kowalskis' Notice of Appeal, Diehl, as executor, sought instruction from the probate court and was specifically authorized to defend the appeal through the estate;
• the probate court authorized Diehl and counsel to defend the appeal in accordance with the fee and representation agreement Diehl submitted to the court for approval; and
• Diehl's attorney did defend the appeal.
The motion attached several documents which establish to our satisfaction that Diehl is entitled to attorney fees. But the motion failed to attach any detailed affidavit setting out the factors we must consider in determining the reasonableness of the fee. Rule 7.07(b)(2) requires a party seeking attorney fees on appeal to attach to the motion an affidavit that specifies the nature and extent of the services rendered, the time expended on the appeal, and the factors considered in determining the reasonableness of the fee under Kansas Rule of Professional Conduct 1.5(a) (2019 Kan. S. Ct. R. 300). Diehl's affidavit attached to the motion fails in each of those requirements.
Instead, Diehl's affidavit merely recites the facts showing its defense of the Kowalskis' appeal was authorized then conclusorily states: "Fees in the amount of $ 12,519.75 have been incurred as a result of defending the appeal of the Kowalskis." The affidavit does not state how much time was spent on what tasks by which persons, nor does it address the eight factors we need to consider in determining the reasonableness of a fee. No invoices or other details are attached to the affidavit. Because Diehl's affidavit fails to meet the requirements of Supreme Court Rule 7.07, we cannot determine reasonableness under KRPC 1.5, as is our duty.
We recognize that we have wide discretion in determining the amount and recipient of attorney fees. Wittig v. Westar Energy, Inc. , 44 Kan. App. 2d 216, 228, 235 P.3d 535 (2010). This is partly because the appellate court is an expert on the reasonableness of attorney fees, Johnson v. Westhoff Sand Co. , 281 Kan. 930, 959, 135 P.3d 1127 (2006), and "can draw on and apply its own knowledge and expertise in determining their value." Freebird, Inc. v. Cimarex Energy Co. , 46 Kan. App. 2d 631, 639-40, 264 P.3d 500 (2011). But the "burden to prove the reasonableness of the fees and expenses requested is upon the party making the request." Wittig , 44 Kan. App. 2d at 210, 235 P.3d 515. Under Kansas authority, we have the discretion to determine the reasonableness of Diehl's requested attorney fees even though the Kowalskis have not objected. See Brand v. Pharmacare Management, Inc. , No. 118421, 2018 WL 4939246, at *7 (Kan. App. 2018) (unpublished opinion). And we have the duty to enforce our rules, which for good reason require an affidavit. Because we have read Diehl's brief on appeal, have heard her oral argument, and see her attorney's hourly rate stated in the attachments to her motion, we could speculate about some amount of fees that may be reasonable. But any such speculation is prohibited by our Supreme Court Rule requiring the movant to file an accompanying affidavit with specificity. For that reason, we deny the motion for attorney fees on appeal.
We dismiss the Kowalskis' appeal for lack of standing and deny Diehl's motion for attorney fees on appeal. | [
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The opinion of the court was delivered by Rosen, J.:
Hai That Ton petitioned for this court's review of the Court of Appeals decision affirming his convictions for possession of marijuana with intent to sell and failure to pay the Kansas drug tax stamp. Because Ton has chosen to narrow the issue in his case only to whether there was reasonable suspicion to support a seizure, we examine that issue alone, see no error below, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2010, Detective Nick Stein was investigating Kyle Graf for marijuana distribution. A confidential informant told Stein that the marijuana Graf was selling was being shipped from California to the Kansas City metropolitan area by United Parcel Service (UPS) and that Graf had an associate in his distribution enterprise who was an Asian male. Stein had the confidential informant purchase some marijuana from Graf and placed a global positioning system (GPS) tracker on Graf's vehicle. The GPS showed Graf's vehicle parked at 18462 W. 157th Terrace in Olathe (the Olathe house) for 11 minutes on July 9 and again for 10 minutes on July 12. Stein testified that he was suspicious of these stops because, "based on [his] training and experience, short-term traffic ... can commonly be associated with illegal drug activity, specifically people selling or buying illegal drugs."
Stein searched the water billing records for the Olathe house and discovered that the water account was registered to someone named Amy. Stein also searched the criminal record database for the address and found it listed as the address of an Asian male named John Ton. Ton had a criminal history for assault with a firearm on a person, burglary, grand theft auto, assault with a weapon that was not a firearm, receiving stolen property, and possession of an assault weapon, and he had a sentence enhancement for violating California's gang statute.
Based on the gathered information, Stein suspected that John Ton was the Asian male who was in business with Graf, or possibly Graf's source of supply. Stein contacted UPS inspector Scott Karr and asked him to place a parcel watch on any packages going to the Olathe house. Stein also told Karr that he was specifically looking for packages coming from California.
On July 20, Karr called Stein sometime between 8 and 10 a.m. to inform him that he had a package addressed to Hanna Woodland at the Olathe house. The package was classified "Next Day Air" which meant it was scheduled to be delivered by 10:30 a.m. on July 20. Karr testified that there was nothing unusual about the package and described it as "common-folk standard." Stein then made contact with Officer Andy Falcon, who partnered with a police dog in the execution of his duties. Stein went to the UPS facility where Karr had four or five packages lying on the floor in the hallway. Falcon testified that he arrived with his canine partner around 10:30 a.m. The dog conducted a drug sniff and alerted to the package addressed to the Olathe house. Stein took the package to the police station.
At 3:07 p.m. on the same day, Stein obtained a search warrant to open the package and an anticipatory warrant to search the Olathe house. The anticipatory warrant was conditioned on the package being taken into the house. When the officers opened the package they discovered it contained marijuana. After finding the marijuana, they resealed the package and delivered it to the Olathe house. The delivery occurred after 5 p.m. on July 20.
After the officers delivered the package, Ton took it inside the house, and the officers executed the search warrant on the residence. In the basement of the house, they found the UPS package, which still contained the marijuana, and two more boxes of marijuana. The police seized 3,333.4 grams of marijuana from the residence, none of which had a Kansas drug tax stamp. Ton was inside the residence when the police executed the search warrant. After officers read Ton his Miranda rights, he agreed to speak to investigators. Ton told the officers he had had marijuana shipped to him, including the marijuana in the intercepted package, and that he sells the marijuana.
The State charged Ton with possession of marijuana with intent to sell and failure to pay the Kansas drug tax stamp. Ton moved to suppress all evidence resulting from the detention of the intercepted UPS package. In the motion, Ton asserted that authorities seized the package in violation of his rights under the Kansas Constitution and the United States Constitution because "[t]here is nothing reported from which either the UPS employee or the Detective could derive any reasonable suspicion, prior to the parcel's detention by the UPS, other than the bare address."
In its response, the State argued the authorities had not violated Ton's constitutional rights because the package was not "seized" for purposes of the Fourth Amendment until after 10:30 a.m., when the scheduled delivery time expired, and by that time the police had probable cause to seize the package. The State also asserted that the six and one-half hour delay of the package that occurred while the officers were waiting for and executing the search warrant was reasonable.
After a suppression hearing, the district court denied Ton's motion. The court concluded that the package was not seized until after 10:30 and that the five-hour seizure was proper at that time because the drug sniff had established probable cause. Ton moved for reconsideration, and the district court again denied his motion. At the hearing on the motion to reconsider, the district judge clarified his earlier order. While the order reflected a finding that the package was not seized until police removed it from the UPS facility after 10:30, the judge informed the parties he meant that there was reasonable suspicion to seize the package.
After a bench trial on stipulated facts, a different judge of the district court convicted Ton of both crimes and sentenced him to 28 months in prison.
Ton appealed, arguing that the district court erred in denying his motion to suppress because the officers did not have the required reasonable suspicion of criminal activity to seize his package out of the mail stream. Ton also argued that the seizure was unreasonable because police detained his package for an unreasonable length of time. The Court of Appeals concluded that the police had reasonable suspicion of criminal activity that justified seizing Ton's package and therefore did not reach the question of whether reasonable suspicion was required or not. State v. Ton , No. 113, 220, 2016 WL 6821850, at *3 (Kan. App. 2016) (unpublished opinion). The panel then declined to analyze whether the police had detained the package for an unreasonable length of time because it concluded that Ton was presenting the issue for the first time on appeal. Ton , 2016 WL 6821850, at *5. We granted Ton's petition for review.
ANALYSIS
Ton argues the Court of Appeals panel erred when it concluded the police had reasonable suspicion to seize the package and when it declined to consider his argument that the police detained the package for an unreasonable amount of time. He urges us to consider both arguments, conclude that the detention of his package was an unreasonable seizure in violation of the Fourth Amendment, and reverse his convictions.
Reasonable suspicion
We apply a bifurcated standard to the review of a district court's decision on a motion to suppress. We determine whether the factual findings are supported by substantial competent evidence without reweighing the evidence or assessing the credibility of witnesses. We review the ultimate legal conclusion drawn from these findings de novo. State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016).
The burden to prove the legality of a challenged search or seizure rests on the State. State v. Cleverly , 305 Kan. 598, 605, 385 P.3d 512 (2016).
Ton challenges the legal conclusion that the detention of his package was reasonable under the Fourth Amendment. Our review of this conclusion is de novo.
The Fourth Amendment to the United States Constitution prohibits the government from conducting unreasonable searches or seizures of "persons, houses, papers, and effects." Because "[l]etters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy," the Fourth Amendment affords them protection. United States v. Jacobsen , 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L. Ed. 2d 85 (1984). Generally, when a seizure of property occurs, it is unreasonable unless it is conducted pursuant to a search warrant that is supported by probable cause. United States v. Place , 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L. Ed. 2d 110 (1983). That said, some temporary, warrantless detentions of property for investigatory purposes do not violate the Fourth Amendment when they are based on reasonable suspicion of criminal activity. Illinois v. McArthur , 531 U.S. 326, 334, 121 S.Ct. 946, 148 L. Ed. 2d 838 (2001) (citing Place , 462 U.S. at 706, 103 S.Ct. 2637 and United States v. Van Leeuwen , 397 U.S. 249, 253, 90 S.Ct. 1029, 25 L. Ed. 2d 282 (1970) ).
We determine what is reasonable " 'based on the totality of the circumstances ... viewed in terms as understood by those versed in the field of law enforcement. ... [W]e judge the officer's conduct in light of common sense and ordinary human experience' " and defer to the " 'trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances. [Citations omitted.]' " State v. Walker , 292 Kan. 1, 8, 251 P.3d 618 (2011) (quoting State v. Thomas , 291 Kan. 676, 687, 246 P.3d 678 [2011] ). But the officer must provide " 'at least a minimal level of objective justification .... [A]n inchoate and unparticularized suspicion or hunch of criminal activity' " is not sufficient to establish reasonable suspicion. Walker , 292 Kan. at 9, 251 P.3d 618 (quoting Thomas , 291 Kan. at 688, 246 P.3d 678 ).
If the State fails to show that a detention or seizure was lawful, the district court may suppress evidence obtained from the detention or seizure under the exclusionary rule. State v. Mullen , 304 Kan. 347, 353, 371 P.3d 905 (2016).
Here, the panel declined to consider whether UPS employees or law enforcement needed reasonable suspicion to take possession of the package. It concluded that this analysis was unnecessary because the government had reasonable suspicion to seize the package, whether it needed it or not. Ton , 2016 WL 6821850, at *3. The panel relied on the following reasoning:
"In this case, Detective Stein was able to point to specific and articulable facts that led him to reasonably suspect Ton was receiving shipments of marijuana through UPS. A confidential informant told Detective Stein that Graf had an Asian male business partner who obtained high-grade marijuana from California. Detective Stein had the CI purchase high-grade marijuana to partially corroborate the information. Law enforcement then placed a GPS tracking device on Graf's car. Graf's car stopped outside 18462 W. 157th Terrace on two different occasions, for a time period between 10 to 15 minutes. Detective Stein testified he was able to reasonably infer from the brief stops at the home that drug sales were occurring.
"Detective Stein then verified that an Asian male, Ton, was connected to 18462 W. 157[th] Terrace. His research of Ton's criminal record revealed Ton had a sentence enhancement due to gang membership in California. Detective Stein stated that gang members are commonly involved in drug sales. Looking at all these facts together, Detective Stein could reasonably infer Ton was having marijuana shipped from California." Ton , 2016 WL 6821850, at *4.
We find no error in this analysis. Ton contends that state agents lacked reasonable suspicion to support a seizure because there was nothing unusual about the package's appearance. Ton presented the same argument in the Court of Appeals, and the panel correctly observed that Fourth Amendment caselaw indicates that state agents may base reasonable suspicion on characteristics of the sender or receiver alone. Ton , 2016 WL 6821850, at *4. Because Ton offers no authority countering this conclusion, we affirm the panel's decision.
Preservation of additional argument
Next, Ton argues that the panel erred when it held he had not preserved his argument that the authorities detained his package for an unreasonable length of time.
We exercise unlimited review over whether a party properly preserved an issue for appellate review. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018).
Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 35) provides that, in an appellant's brief, "[e]ach issue must begin with ... 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 why the issue is properly before the court." In State v. Godfrey , 301 Kan. 1041, 350 P.3d 1068 (2015), the appellant argued for the first time on appeal that the State had violated his due process rights. We declined to reach the merits of his claim. Godfrey , 301 Kan. at 1042-43, 350 P.3d 1068.
The Court of Appeals relied on Supreme Court Rule 6.02(a)(5) and Godfrey to rule that Ton had not preserved his argument for review because he had not argued in the district court that the officers held his package for an unreasonable length of time. Ton , 2016 WL 6821850, at *4-5. Ton asserts that he did not have to present this argument in the district court because Supreme Court Rule 6.02(a)(5) required him to present only his "issue." He asserts that he presented his "issue" when he argued that the warrantless detention of the package was an unreasonable seizure that violated his Fourth Amendment rights. Ton contends that it was the State's burden to prove "the legality of its warrantless seizure in every aspect."
We considered a similar argument in State v. Estrada-Vital , 302 Kan. 549, 356 P.3d 1058 (2015). There, officers learned the defendant had a revoked license after finding his wallet during a search of his car. They arrested the defendant, performed a search of his person incident to the arrest, and discovered cocaine in his pocket. The defendant moved to suppress all evidence obtained as a result of the unreasonable search of his vehicle. The district court denied his motion. The defendant argued to the Court of Appeals that the district court should have suppressed the cocaine because the arrest and subsequent search of his person was based on information obtained from an illegal search of his wallet. The Court of Appeals did not consider his contention because it concluded the defendant was making a new argument on appeal.
On review, Estrada-Vital argued to this court that he preserved his argument in the district court when he presented sufficient facts to establish a warrantless search. We considered this assertion, noting that
"[f]or decades, we have required that 'when a defendant challenges the admissibility of evidence on the basis it was obtained by an unlawful search and seizure, the [S]tate has the burden of proving that the search and seizure was lawful.' State v. Voit , 207 Kan. 635, 639, 485 P.2d 1306 (1971). That burden is codified in K.S.A. 22-3216(2), which provides that, at a hearing upon a defendant's written motion to suppress evidence, 'the burden of proving that the search and seizure were lawful shall be on the prosecution.' " Estrada-Vital , 302 Kan. at 556, 356 P.3d 1058.
Yet we were wary of the defendant's argument that he had to do no more than " 'state facts' " when alleging a Fourth Amendment violation and that it was the State's burden to "refute all possible theories of unlawfulness that might flow from the stated facts." That interpretation of the parties' burdens left it to the district court to "connect the dots between the stated facts in order to intuit the defense's theory of how they constitute a Fourth Amendment violation." Estrada-Vital , 302 Kan. at 557, 356 P.3d 1058.
Ultimately, we passed no judgment on the defendant's argument because the defendant had stipulated in the district court that the police had legal justification for the search of the car, his arrest, and the search of his person, and that there were no additional facts for the court to consider. These comments prevented the district court from making factual findings that supported the defendant's appellate argument and were necessary for appellate review. Estrada-Vital , 302 Kan. at 557-59, 356 P.3d 1058.
Ton has fashioned a nearly identical scenario. In his motion to suppress, he argued that the seizure of his package was illegal because it had to be supported by reasonable suspicion and "[t]here is nothing reported from which either the UPS employee or the Detective could derive any reasonable suspicion, prior to the parcel's detention by the UPS, other than the bare address." With this assertion, Ton affirmatively narrowed the scope of his argument, resulting in a suppression hearing focused on whether authorities had reasonable suspicion to detain the package. In effect, Ton's arguments directed the district court to make findings and conclusions related only to the presence of reasonable suspicion. As a result, the record on appeal lacks the findings Ton needs to support his argument and the record an appellate court needs to review his claim. For this reason, we uphold the Court of Appeals decision not to address the merits of Ton's argument.
The judgment of the district court is affirmed. | [
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On March 6, 2015, the court ordered the respondent, Louis M. Clothier, be placed on probation for a period of three years. See In re Clothier, 301 Kan. 567, 344 P.3d 370 (2015).
On April 18, 2018, the respondent filed a motion for discharge from probation, along with affidavits demonstrating compliance with the terms of probation.
On April 19, 2018, the Disciplinary Administrator filed a response, confirming that the respondent fully complied with the conditions imposed upon him by the court and offering no objection to the respondent being discharged from probation.
This court, having reviewed the motion, the affidavits, and the recommendation of the Disciplinary Administrator, grants the respondent's motion for discharge from probation.
IT IS THEREFORE ORDERED that the respondent is hereby discharged from probation and from any further obligation in this matter and this proceeding is closed.
IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to the respondent. | [
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The opinion of the court was delivered by Rosen, J.:
The Kansas Department of Revenue (KDOR) suspended Kelly Casper's driving privileges based on her arrest and refusal to take a blood alcohol test. She appealed to district court, where the judge held that she met her burden of proving both that the arresting officer lacked reasonable grounds to believe that she was driving while impaired and lacked probable cause to arrest her. KDOR appealed to the Court of Appeals, which reversed, holding that the record on appeal supported an opposite conclusion. We granted Casper's petition for review and now reverse the decision of the Court of Appeals panel.
FACTS
According to Casper's testimony before the district court, on October 25, 2013, she was visiting family in Wichita, Kansas, and had a glass of wine at around 5:30 in the afternoon. A couple of hours later, she took some sips of alcoholic beverages at a friend's house in order to taste-test the drinks for an upcoming party. At around midnight, she drove away from her friend's house and, when making a right turn, turned into the left travel lane instead of the lane nearest her turn lane.
Officer Steven Thornton of the Wichita Police Department witnessed the wide turn, which, while a relatively common type of turn, is a traffic infraction. He followed Casper's car for a while and did not observe any other traffic infractions. He saw no driving indicators that the operator was impaired. He turned on his emergency blinking lights and followed her as she signaled, pulled over into the right lane, and then turned onto a side street. At the same time, a video recording of the encounter was commenced, which was later entered into evidence.
Thornton asked Casper if she had been drinking, and she said yes. He then asked her to get out of the car and perform a couple of field sobriety tests. According to Thornton's testimony in district court, Casper's eyes were not bloodshot, and her statements were, for the most part, clear and concise. Thornton testified that Casper was initially "fine," but, over the course of several tests, she "became a tad bit uncooperative" and "a little argumentative." He asked her to perform three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. In his estimation, she did not perform these tests satisfactorily, and he placed her under arrest. She subsequently refused to take a breathalyzer test.
Thornton issued Casper a notice of suspension for refusing to take a blood alcohol test. Casper timely requested an administrative hearing. The KDOR Division of Vehicles conducted an administrative hearing and, affirming the administrative action suspending her license, concluded that law enforcement had reasonable grounds to believe that Casper was operating a vehicle while under the influence of alcohol and was lawfully in custody.
Casper filed a timely petition for review with the Sedgwick County District Court. On two separate hearing dates, the district court heard the testimony of Thornton and Casper and viewed the video recordings of the stop and subsequent events. After hearing the witnesses and arguments by counsel, the district court announced from the bench its conclusion that Casper had met her burden of proving both a lack of reasonable grounds for believing that she was driving while impaired and a lack of probable cause to support a lawful arrest. The court announced extensive findings explaining the basis of its decision.
KDOR filed a timely notice of appeal to the Court of Appeals. The Court of Appeals reversed the district court, reviewing the testimony and exhibits and essentially holding that the totality of the circumstances favored KDOR's position, not Casper's. Casper v. Kansas Dept. of Revenue , No. 115352, 2016 WL 6024622 (Kan. App. 2016) (unpublished opinion).
ANALYSIS
On review of the Court of Appeals decision and the district court order, we are tasked with ascertaining whether substantial competent evidence in the record supported the district court's factual findings and whether the conclusion derived from those findings is legally correct. We adopt the reviewing standard set out in Poteet v. Kansas Dept. of Revenue , 43 Kan. App. 2d 412, 415, 233 P.3d 286 (2010) : The determination of whether an officer has reasonable grounds for a particular action involves a mixed question of law and fact, and appellate courts review the ultimate legal conclusion-whether reasonable grounds existed-independently, while deferring to the district court's factual findings. See also State v. Johnson , 297 Kan. 210, 221, 301 P.3d 287 (2013) ("Whether reasonable grounds exist to believe a person has been operating a vehicle while under the influence of alcohol is a question of law."); Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012) (appellate courts generally review district court decisions in driver's license suspension cases to determine whether supported by substantial competent evidence).
It is difficult to cleanly differentiate the two components in a case such as this. Factual findings are intertwined with judging the reasonableness of the officer's actions. As a consequence, the court must view the two in combination, examining the totality of the factual circumstances. See, e.g., Sloop v. Kansas Dept. of Revenue , 296 Kan. 13, 23, 290 P.3d 555 (2012) (probable cause to execute a warrantless arrest is subject to totality of circumstances test).
Here, Casper was unwilling to submit to a breath test. If a driver refuses to take a breath test, K.S.A. 2018 Supp. 8-1002(a)(1) directs the Kansas Department of Revenue Division of Vehicles to suspend a person's driving privileges when the following four conditions are met:
"(A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol ...;
"(B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision;
"(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and
"(D) the person refused to submit to and complete a test as requested by a law enforcement officer."
K.S.A. 2018 Supp. 8-1020(a) provides that "[a]ny licensee served with an officer's certification and notice of suspension [for failing or refusing a breath test], may request an administrative hearing." K.S.A. 2018 Supp. 8-1020(h)(1) explains that the scope of review at that hearing is limited to whether the four conditions outlined in K.S.A. 2018 Supp. 8-1002 have been met. Each of those four conditions is also within the purview of the district court when it reviews the decision from the administrative hearing. Sloop, 296 Kan. at 17, 290 P.3d 555.
Our caselaw suggests the arrest in subsection B must be a lawful arrest in order to satisfy that element. In Sloop , 296 Kan. at 19, 290 P.3d 555, we considered K.S.A. 8-1001, which sets out the conditions under which a law enforcement officer has the authority to request a test of a person's blood, breath, urine, or other bodily substance to determine the presence of alcohol and drugs. Two conditions must be met. One of those is that "[t]he person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance." K.S.A. 2018 Supp. 8-1001(b)(1)(A).
We held that, in order for this element to be satisfied, the person had to be under lawful arrest, and, for the arrest to be lawful, the officer had to have probable cause to make it. The court based this holding on the plain language of the statute and implied that the same plain language analysis applied to the requirement in K.S.A. 2018 Supp. 8-1020(h)(1)(B). Sloop , 296 Kan. at 19, 20, 290 P.3d 555. The analysis in the present case therefore proceeds from an understanding that an arrest must be lawful in order for the second element of K.S.A. 2018 Supp. 8-1002 (or K.S.A. 2018 Supp. 8-1001 [b][1] ) to be satisfied.
The district court here determined both that reasonable grounds did not exist for Thornton to believe Casper was operating her vehicle while under the influence of alcohol and there was no lawful arrest because Thornton lacked probable cause to make the arrest. The district court treated these two concepts as equivalent. Our court has implied the terms are essentially the same, with at most only subtle differences. See Johnson , 297 Kan. at 222, 301 P.3d 287 (reasonable grounds test of K.S.A. 8-1001 [b] is "strongly related" to standard for determining probable cause to arrest). Even if it was technically error for the district court to conflate the two matters, it was an error without consequence. Logic tells us that, if the district court properly decided there were no reasonable grounds to believe Casper was driving while under the influence alcohol, there would also be no probable cause to arrest her.
Casper petitioned for judicial review of the administrative hearing decision when her license was suspended. In that petition, she argued that the first element of the statute permitting the suspension of her license was not met because the law enforcement officer did not have reasonable grounds to believe she was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs.
The district court noted that its scope of review was limited to the four requirements outlined in the statutes. It ultimately concluded that Casper had met her burden of showing that the decision to suspend her license should be set aside.
The district court discussed extensively the evidence it had before it and concluded that Thornton lacked both reasonable grounds to believe Casper was impaired and probable cause to place her under arrest. The Court of Appeals decided that the district court gave too much weight to some factors and deemed some of the grounds on which the district court relied to be inappropriate factors. The Court of Appeals then independently weighed the inculpatory and exculpatory evidence, reaching a conclusion contrary to that of the district court.
In answering the questions posed by the standard of review, it is necessary to look to the evidence before the district court and how the district court considered that evidence.
Casper testified that she was very nervous when she was pulled over because she had never been pulled over by police, she had never received a ticket, and she had never been arrested before. She testified that her breath did not smell of alcohol, an assertion that she firmly stood by under rigorous cross-examination about how she could know what her breath smelled like (during which she informed the court that her breath smelled like coffee at the time of the cross-examination). She testified that she was not "tipsy" and that she was completely sober at the time of the stop. She also testified that she declined to take the breath test because she did not trust the police officer based on misleading statements he had made to her at the stop.
The district court determined that there was no evidence that a strong odor of alcohol was emanating from Casper's person. An examination of the record supports this conclusion. Significantly, Thornton did not testify in court that Casper's breath smelled of alcohol. He was questioned briefly about whether he detected the smell of alcohol, and he testified that he detected "some odor" "on her." The video recording shows Thornton saying to Casper, "You reek of alcohol." Counsel for KDOR never asked him to explain why he said that and never asked him whether her breath exhibited the odor of alcohol. No foundation was laid to the subject because KDOR never sought Thornton's testimony about her breath.
The statement on the video recording did not constitute evidence for the district court to consider because it was never presented to the court in a context of evidence that she had been drinking. Unlike the visual evidence of Casper's performance on the sobriety tests, the recording provided nothing that would actually establish that Thornton smelled alcohol on Casper's breath. It was nothing more than an out-of-court statement caught on a recording, and it was no more probative than Casper's assertion on the video that her fiancé was an FBI agent. The only competent evidence put forward to the district court (or to the Court of Appeals and this court) was Thornton's single statement that he smelled "some odor" of alcohol from Casper's person and Casper's testimony that there was no alcohol on her breath at the time of the stop.
The Court of Appeals concluded that the district court's finding that there was no evidence of a strong odor of alcohol was "not supported by substantial competent evidence because the officer told Casper in the video that she reeked of alcohol." Casper , 2016 WL 6024622, at *3. This statement is incorrect. The evidence on which the Court of Appeals relied was not substantial; it was nothing more than a statement on the recording. The actual trial testimony was of "some odor," which was balanced against Casper's testimony of no odor. The district court's conclusion that there was no evidence of a "strong odor" of alcohol, after considering both Thornton's and Casper's testimony, was well supported by substantial evidence.
In analyzing whether to consider the officer's decision not to utilize a preliminary breath test (PBT) in the analysis, the district court commented:
"I am not in any way finding that a PBT is required in every DUI investigation, but the lack of one in this case is part of the evidence, just like if there was no fingerprint testing done on a gun when it could have been done. That is evidence that a jury could consider that the police did not perform certain tests that they had the ability to perform."
Criticizing this comment, the Court of Appeals wrote that
"the district court put too much emphasis on what proof a PBT could have provided had one been performed. ... It ... likened the officer's failure to perform a PBT to the failure to perform fingerprint testing on a gun. But the question was not whether Casper was guilty beyond a reasonable doubt of operating a vehicle under the influence of alcohol. Instead, the issue was merely whether the officer had, at the time, reasonable grounds to believe Casper was operating her vehicle while under the influence of alcohol. The results of a PBT are just another factor for a court to consider when examining this question." Casper , 2016 WL 6024622, at *4.
The Court of Appeals suggested that the district court found for Casper because it believed the officer's failure to conduct a PBT created reasonable doubt that she was driving while intoxicated. The record does not reveal this to be the case-the district judge made it clear that he was considering the lack of a PBT alongside other evidence to determine whether "the totality of the circumstances" showed that the officer had reasonable grounds to believe Casper was driving under the influence.
To the extent that the Court of Appeals found that the district court failed to consider the totality of the circumstances to reach its decision, it erred. After hearing all the testimony and reviewing the recordings, the district court discussed the circumstances of the stop. It noted that Casper did not delay turning off the roadway when Thornton activated the signals on his squad car; she properly signaled, pulled over into the right-hand lane, and turned at the next available street entrance. There was no evidence of bad driving beyond initially turning into the wrong lane, something that drivers commonly do. She exhibited no slurred speech. No preliminary breath test was requested. The horizontal gaze nystagmus test was not admitted for the purpose of evaluating the results of the test but only to show whether Casper followed directions. Although Thornton asked her whether she had any drinks that day, he did not ask when she consumed the drinks. She exhibited no stumbling when she got out of the car. The district court stated that the absence of a PBT was significant in this case because the evidence of driving under the influence was "certainly not strong."
Thornton testified that Casper scored 5 out of 8 on and failed the walk-and-turn test and scored 2 out of 4 on and failed the one-leg-stand test. On the walk-and-turn test, she was losing her balance before the instructional phase, she started before she was told to start, she used her arms for balance, she failed to touch her toe, and she pivoted in the wrong direction. On the one-leg stand test she used her arms for balance and placed her foot down after approximately six seconds.
The Court of Appeals referred to the field sobriety tests as "objective" tests and held it was error for the district court to rely on "subjective" observations of Casper's driving and behavior. Casper , 2016 WL 6024622, at *3. It is true that the field tests possess indicia of objectivity. See, e.g., City of Wichita v. Molitor , 301 Kan. 251, 261, 341 P.3d 1275 (2015). But it is also true that, although field sobriety tests may have objective grading criteria that officers must follow, it is an officer's subjective opinion that determines whether a suspect has passed the objective field sobriety tests. See State v. Garris , 603 So. 2d 277, 282 (La. App. 1992) ; see also Molitor , 301 Kan. at 267, 341 P.3d 1275 (officers may be influenced by their impressions of alcohol consumption when rating performance on so-called objective tests).
Watching Casper's recorded attempts to follow Thornton's directions would validly demand that the district court evaluate her performance in light of how a reasonable person would respond to the officer's directions. In State v. Witte , 251 Kan. 313, 321, 836 P.2d 1110 (1992), we held that field sobriety tests rely on common knowledge, not scientific foundation, for their reliability. It follows that a district court judge could rely on common knowledge to evaluate an arresting officer's grading of field sobriety tests. It is not enough for a police officer to simply write down that a driver failed 3 out of 8 parts of a test, without allowing those results to be contested before a neutral fact-finder. Otherwise, the arresting officer becomes the final arbiter of his or her own reasonableness.
The court determined that Thornton's instructions for the field tests were given very quickly and it was not clear that Casper was unable to perform tasks as instructed. For example, when taking the HGN test, she initially moved her head slightly, but, when Thornton reminded her that she was not to move her head at all, she fully complied. He nevertheless decided she failed to follow his instructions. The court balanced the totality of the circumstances and found that Casper sustained her burden of showing the agency decision should be set aside. The court then went back over all the inculpatory factors that the State argued in its written pleadings and explained why it did not find them persuasive.
These findings should be reviewed in light of the deference given on appeal to the fact-finder below, who heard the witnesses, viewed their demeanor, and resolved conflicting evidence. See, e.g., State v. Ward , 292 Kan. 541, 581, 256 P.3d 801 (2011). "In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it." Gannon v. State , 305 Kan. 850, 881, 390 P.3d 461 (2017) ; see Ornelas v. United States , 517 U.S. 690, 698-99, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (independent review of reasonable grounds and probable cause is necessary for appellate courts to maintain control of legal principles, but "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers").
Our Court of Appeals nevertheless found that the district court erred in considering the constellation of factors making up the totality of the circumstances. The Court of Appeals concluded that the "totality of the circumstances supports instead a finding that the officer had reasonable grounds to believe that Casper was operating her vehicle while under the influence of alcohol." Casper , 2016 WL 6024622, at *4.
The Court of Appeals stated that the district court "put too much emphasis on what proof a PBT could have provided." Casper , 2016 WL 6024622, at *4. The Court of Appeals pulled apart other aspects of the district court's findings, stating that the district court overly relied on its subjective evaluation of the video recording. 2016 WL 6024622, at *4. The Court of Appeals criticized the district court's evaluation of the evidence: "Rather than relying on its subjective observations of Casper's behavior, the district court should have relied on the objective results of the field sobriety tests which Casper had failed." 2016 WL 6024622, at *3.
Perhaps the judges on the Court of Appeals panel would have emphasized different factors and reached a different result if they had been the sitting on the district court bench for the de novo trial. But the district court took into account all the various evidence it had before it. The evidence before it was substantial and competent, and it based its decision on that evidence. It made reasonable inferences from that evidence. The Court of Appeals improperly discounted the weight that the district court gave to a wide variety of evidentiary factors and reweighed the evidence.
A careful review of the evidence presented to the district court confirms that court's conclusion that Casper gave very little indication of driving while impaired. While she may have had "some odor" of alcohol emanating from her-which was disputed-alcohol did not appear to affect her behavior, her demeanor, or her performance on tests. On the whole, she performed well on the tests. To be sure, she sometimes started performing tests before Thornton finished giving her the instructions, and she had to start over. She became agitated and argued with him, demonstrating her frustration with being subjected to field sobriety tests. She moved her head slightly when she began the gaze test but corrected that when Thornton repeated his instruction.
CONCLUSION
While reasonable people may reach differing conclusions from the evidence presented to the district court, appellate courts are expected to give deference to the fact-finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached. In keeping with the principles for reviewing lower court decisions, we conclude that substantial competent evidence supported the district court's factual findings and that the consequent legal conclusions were correct.
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McAnany, J.:
In 1999, Paul B. Young was convicted of aggravated indecent liberties with a child under 14 years of age. As a result of this conviction, he was required to register for his lifetime under the Kansas Offender Registration Act, K.S.A. 2018 Supp. 22-4901 et seq. (KORA).
In 2010, Young pled guilty to two KORA violations. Then, in 2016, Young pled guilty to his third KORA violation.
On July 31, 2017, the State charged Young with his fourth KORA violation. Young was still on probation from his third KORA violation at the time of this fourth violation. The underlying sentence for his third KORA violation was a mitigated 61-month guideline prison sentence.
At a hearing on October 19, 2017, Young appeared with his attorney and waived his right to a preliminary hearing. He had no plea agreement with the State. Nevertheless, he informed the court that he wished to plead guilty. Before the hearing Young had signed an acknowledgment of his rights in which he stated that he understood that upon conviction of a fourth KORA violation the sentence the court could impose ranged from 55 to 247 months. The district court informed Young of his rights and his potential sentence and inquired if he understood those rights. Young had no questions about his rights and the consequences for entering a plea and expressed the desire to enter a guilty plea. He stated that the State's charging document was correct, and he agreed there was a factual basis for the charge. The district court found that Young "knowingly, intelligently, freely, and voluntarily waived his rights," accepted Young's plea, found him guilty as charged, and ordered a presentence investigation.
Before sentencing Young moved for a downward durational departure.
On December 7, 2017, the court held a combined hearing on Young's probation violation and for sentencing on his fourth KORA conviction. Young admitted to six probation violations in his prior case. The State recommended that Young's probation be revoked and that he serve his underlying prison sentence of 61 months.
Young agreed with his criminal history as reported to the court and agreed that his criminal history score was D. Based on that score, the sentencing grid range for his fourth KORA violation was 89-94-100 months.
Young's counsel argued that there were substantial and compelling reasons for the court to depart from the guidelines and impose a sentence of 36 months to be served concurrently with his 61-month sentence in his prior case. He argued that it would be manifestly unjust to do otherwise because the current conviction arose from an 11-day delay in registering after moving to a new address, that Young was otherwise in compliance with his registration requirements, and that Young took responsibility for his actions. He also addressed the probation violations related to Young's KORA violation conviction.
The State requested that the court impose the low number guideline sentence of 89 months but argued that Young's sentence should be served consecutively to his 61-month prison sentence in the prior case in which he violated probation because it would not be manifestly unjust to do so.
The district court declined to depart, finding that there were no substantial and compelling reasons to grant a departure from the guideline sentence for Young's current KORA offense. But the court imposed the "lowest minimum sentence" of 89 months in the custody of the Secretary of Corrections. In a separate hearing, the court ordered Young to serve his underlying prison sentence in the case in which he violated probation.
Young's appeal brings the matter before us.
Young contends on appeal that the district court abused its discretion in failing to find that manifest injustice would occur by allowing his sentence for his KORA violation to run consecutive to his sentence in his prior criminal case. He argues that it is unreasonable to imprison him for over a decade "on account of [his] inability to comply with filing deadlines." On the other hand, the State contends that we are without jurisdiction to consider this issue because Young's sentence was within the presumptive range.
Whether jurisdiction exists is a question of law over which our review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). We do not have discretionary power to entertain appeals from all district court orders. Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 609-10, 244 P.3d 642 (2010). To the contrary, the right to appeal is entirely statutory. It is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, our appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by our statutes. Smith , 304 Kan. at 919, 377 P.3d 414 ; State v. Gill , 287 Kan. 289, 294, 196 P.3d 369 (2008).
K.S.A. 2018 Supp. 21-6820(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines sentence for the crime or (2) the result of a plea agreement between the State and the defendant which the trial court approved on the record. State v. Sprung , 294 Kan. 300, 317, 277 P.3d 1100 (2012) (no jurisdiction to review presumptive sentences).
Here, Young was convicted of a KORA violation, a severity level 3 person felony. K.S.A. 2018 Supp. 22-4903(a), (c)(1)(C) ; K.S.A. 2018 Supp. 22-4905(g). Because his crime was committed while on probation for a previous felony conviction, his sentence was required to run consecutive to other sentences by operation of law. K.S.A. 2018 Supp. 21-6606(c).
But Young argues that he is not appealing his presumptive sentences in either this case or in his probation revocation case. To the contrary, and relying on State v. Rose , No. 90,111, 2004 WL 117358, at *1 (Kan. App. 2004) (unpublished opinion), Young argues that he is challenging the court's decision not to make a special finding that would result in concurrent sentences in these two cases. He also relies on our Supreme Court's holding in State v. Ross , 295 Kan. 1126, 289 P.3d 76 (2012). The State does not discuss either of these cases in its appellate brief.
In Rose , an appeal brought by the State, the defendant was convicted of aggravated burglary, burglary, and felony theft. Sentences for these crimes are included in the Kansas Sentencing Guidelines sentencing grid. At the time Rose committed these crimes he was on parole for a 1991 robbery conviction, which carried a preguidelines indeterminate sentence of up to 20 years. Upon Rose's current convictions, the district court "found that there was uncertainty regarding the length of sentence Rose would serve if his sentences were imposed consecutive to the previous sentence, as required under K.S.A. 21-4608. Consequently, the trial court ordered concurrent sentences, finding that 'to run the cases consecutive would constitute manifest injustice.' " 2004 WL 117358, at *1. On appeal, the State contended the appellate court had jurisdiction to consider whether the district court abused its discretion in finding manifest injustice to support the imposition of concurrent rather than consecutive sentences. The court determined it had jurisdiction to consider the State's appeal because it was on a question reserved regarding a statute that had not previously been interpreted by the court.
The Rose court noted the holding in State v. Ware , 262 Kan. 180, 181-82, 938 P.2d 197 (1997), that the discretionary imposition of consecutive sentences is not an appealable issue. Ware had been convicted of felony murder, an off-grid crime, and aggravated robbery, an on-grid crime.
"The Ware court reviewed K.S.A. 21-4721(c)(1), which prevents the appellate court from reviewing any sentence that is within the presumptive sentence for the crime, and found that ' "[a] grid block provides no mandate regarding whether a sentence should be run concurrently or consecutively. Therefore, a consecutive sentence is not in and of itself inconsistent with the presumptive sentence and is not a departure." ' 262 Kan. at 184, 938 P.2d 197. As a result, the court held that it did not have jurisdiction over the appeal of the discretionary order of consecutive sentences. 262 Kan. at 184, 938 P.2d 197." Rose , 2004 WL 117358, at *2.
But the Rose court distinguished Ware :
"Here, K.S.A. 21-4608 applies because Rose was convicted in this case while he was already on parole from a previous conviction. According to K.S.A. 21-4608(c), any person convicted and sentenced for a crime committed while that person was on parole for a felony shall serve the sentence consecutive to the terms for which the person was under parole. Nevertheless, the exception to this rule is found in K.S.A. 2002 Supp. 21-4720(a), which states that the mandatory consecutive sentence provisions of K.S.A. 21-4608(c) shall not apply if such application would result in manifest injustice. In this case, the only discretion the district court had was in deciding whether manifest injustice would result in the otherwise mandatory consecutive sentences, not in deciding whether to order consecutive or concurrent sentences." Rose , 2004 WL 117358, at *2,.
In Ross , another case Young relies on, the defendant argued that the district court abused its discretion in denying his request to have his sentence for felony murder (an off-grid sentence) run concurrent with his sentence for kidnapping (an on-grid crime). In considering the jurisdiction issue, the Ross court noted its prior decisions in Ware and in State v. Flores , 268 Kan. 657, 999 P.2d 919 (2000). The Ross court noted that in Ware "[t]his court did not reach the merits of Ware's argument because we assumed that Ware had received a 'presumptive sentence' as contemplated in K.S.A. 21-4721(c)(1) and, thus, we were statutorily prevented from reviewing his sentence." Ross , 295 Kan. at 1136, 289 P.3d 76.
The Ross court also noted that in Flores , "[b]ased on Ware , we dismissed Flores' appeal for lack of jurisdiction because we again assumed that Flores had received a presumptive sentence within the meaning of K.S.A. 21-4721(c)(1) and that the imposition of consecutive sentences did not constitute a departure sentence, which is reviewable under K.S.A. 21-4721(e)(1)." 295 Kan. at 1136-37, 289 P.3d 76.
The Ross court concluded that Ware and Flores were wrongly decided because the term "presumptive sentence" as used in the KSGA does not include life sentences for off-grid crimes. The court cited its decision in State v. Ortega-Cadelan , 287 Kan. 157, 163, 194 P.3d 1195 (2008), wherein the court noted that K.S.A. 21-4721(c)(1) provides that an "appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime." A presumptive sentence is one that falls within the grid block for the defendant's crime. But Ortega-Cadelan's crime was an off-grid crime and not a presumptive sentence. Accordingly, the Ross court ruled: "Thus, K.S.A. 21-4721(c) does not prevent a defendant from challenging a district court's decision ordering that a sentence for an on-grid crime run consecutive to a life sentence for an off-grid crime in a multiple conviction case involving both off-grid and on-grid crimes." 295 Kan. at 1138, 289 P.3d 76.
But Rose and Ross cited by Young do not control here. Nor does Ortega-Cadelan . Those cases involved the imposition of consecutive off-grid sentences and on-grid sentences. Here, Young complains about the imposition of two consecutive on-grid sentences.
As a general principle, the imposition of consecutive presumptive guideline sentences does not constitute a departure. State v. Bramlett , 273 Kan. 67, 68, 41 P.3d 796 (2002). Our appellate courts lack the jurisdiction to entertain challenges to the imposition of consecutive guideline sentences. As stated in State v. Brune , 307 Kan. 370, 371, 409 P.3d 862 (2018),
"Such decisions [on whether to impose a concurrent or consecutive sentence] traditionally fall within the sound discretion of sentencing courts. State v. Horn , 302 Kan. 255, 256-57, 352 P.3d 549 (2015). 'In fact, this principle of a judge's discretion is so entrenched that the legislature determined a defendant cannot raise the issue of whether imposing consecutive sentences is an abuse of discretion if the sentence is imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. ' State v. Mosher , 299 Kan. 1, 2-3, 319 P.3d 1253 (2014)."
See also State v. Thorpe , 36 Kan. App. 2d 475, 478, 141 P.3d 521 (2006) ; State v. McCallum , 21 Kan. App. 2d 40, 895 P.2d 1258 (1995).
Here, Young was on probation for a crime for which the court had imposed an underlying guidelines grid sentence when he committed another crime which also called for a guidelines grid sentence. Upon his conviction of the current crime, the court simply revoked Young's probation and ordered him to serve the previously imposed mitigated guideline prison sentence. The court then imposed another mitigated guideline sentence for his current crime.
Because Young was on probation at the time he committed his current crime, K.S.A. 2018 Supp. 21-6606(c), which is part of our general sentencing statutes, required the court to order that his current sentence be served consecutively to the sentence in his prior case. But under K.S.A. 2018 Supp. 21-6819(a) -which is part of our sentencing guidelines-the consecutive sentence called for in K.S.A. 2018 Supp. 21-6606(c) was not required if the imposition of such a sentence would be manifestly unjust.
Here, the district court considered whether a consecutive sentence would be manifestly unjust and determined that it would not. This determination was made consistent with a provision in our sentencing guidelines- K.S.A. 2018 Supp. 21-6819(a). The sentence imposed was a mitigated guideline sentence, which was to be served following completion of his prior sentence, as required by K.S.A. 2018 Supp. 21-6606(c). In no manner did the district court deviate from our sentencing guidelines. Consecutive presumptive sentences under the Kansas Sentencing Guidelines Act do not constitute sentencing departures and are not appealable. State v. Jacobs , 293 Kan. 465, 466, 263 P.3d 790 (2011).
Accordingly, we do not have jurisdiction to consider Young's issue on appeal. This appeal is dismissed for lack of jurisdiction.
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Malone, J.:
The Kansas Department of Revenue (KDR) suspended Nathan A. Jarvis' driver's license after he refused to submit to a breath test. On judicial review, the district court found that the officer lacked reasonable suspicion to stop Jarvis' car. Based on this finding, the district court ruled that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges." On appeal the KDR first claims the district court erred by finding that the officer lacked reasonable suspicion to stop Jarvis' car. Second, the KDR claims that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case.
Based on our review of the record, there was sufficient evidence to support the district court's finding that the officer lacked reasonable suspicion to stop Jarvis' car. And we agree with the district court that on judicial review of the administrative suspension of a person's driver's license, K.S.A. 2018 Supp. 8-1020(p) now authorizes the district court to "consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter." Based on the district court's finding that the officer unlawfully stopped Jarvis' car, we affirm the district court's decision to set aside the administrative suspension of Jarvis' driving privileges.
FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2017, Officer Matthew Hirsch of the Merriam Police Department arrested Jarvis for driving under the influence (DUI). Hirsch read the implied consent advisories to Jarvis and he refused to submit to a breath test, resulting in the KDR's administrative suspension of Jarvis' driving privileges. Jarvis requested an administrative hearing and the hearing officer upheld the suspension. Jarvis filed a petition for judicial review, arguing in part that Hirsch had "no lawful grounds to stop [Jarvis'] vehicle" and also that Hirsch had "no reasonable grounds to believe [Jarvis] was operating a vehicle under the influence of alcohol or drugs."
The district court held a trial de novo and Hirsch was the only witness to testify. Hirsch told the court that he stopped Jarvis around 1:45 a.m. after he saw him swerving in his lane and crossing the center line of the road. Hirsch explained the road Jarvis was on had no painted center line, but if it had been there, Jarvis would have crossed it. He said he also saw Jarvis almost hit a mailbox, although he did not include this fact in his report. Hirsch testified that he pulled Jarvis over, intending to give him a warning for swerving and crossing the center line. But as Hirsch spoke with Jarvis, he saw that his eyes were bloodshot, and he smelled alcohol on his breath. Jarvis admitted he had drunk one beer.
Hirsch asked Jarvis to exit his vehicle and he conducted several field sobriety tests. Jarvis successfully performed the "finger-to-nose" and "alphabet" tests. But according to Hirsch, Jarvis failed the walk-and-turn test and showed clues of impairment on the one-leg-stand test. Jarvis refused a preliminary breath test. Hirsch arrested Jarvis for DUI and took him to the Merriam Police Department. There, Hirsch asked Jarvis to submit to an evidentiary breath test, but Jarvis refused. Jarvis later asked about the possibility of taking a blood test, but Hirsch did not administer one.
The video recording from Hirsch's patrol car was played at the hearing and introduced as an exhibit. Hirsch testified that he manually started the video, and he would have done so after seeing a traffic infraction. After watching the video in court, Hirsch said he saw two lane violations, but he could not specify when they had occurred in the video. After hearing the evidence, the district court took the matter under advisement and asked the parties to submit posttrial briefs.
On February 9, 2018, the district court filed a 13-page memorandum decision reversing Jarvis' driver's license suspension. The district court began by addressing whether Hirsch had reasonable suspicion for the traffic stop and, on that issue, the district court found that Hirsch's testimony was not credible. The district court noted that Hirsch claimed to have seen Jarvis commit a traffic violation on an unlaned road, but when the video started, Jarvis was on a laned road. The district court also noted that Hirsch testified he made a complete and accurate report of the incident, but his report did not include his observation of Jarvis almost hitting a mailbox. The district court added that Hirsch was unable to pinpoint any traffic violations on the video. The district court found that the video did not show Jarvis' car weaving any more than Hirsch's car. The district court concluded by finding that Hirsch "articulated no credible reasonable suspicion justifying the stop and initial encounter."
The district court then analyzed the effect of the 2016 amendment to K.S.A. 8-1020(p) on Jarvis' driver's license suspension case. The district court found that "[t]he Legislature has made it clear by the 2016 amendment that the initial police encounter is a justiciable issue" in a driver's license suspension case. The district court also found that the new statutory provision would be rendered "meaningless" if constitutional claims had no effect on the district court's decision whether to uphold a driver's license suspension. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court concluded that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges."
Although the district court could have ended its analysis there, the court went on to find that after Hirsch initiated the traffic stop, he had reasonable grounds to believe that Jarvis was operating a vehicle while under the influence of alcohol to justify the request for Jarvis to submit to a breath test. The district court also found that Jarvis refused to submit to the breath test and he did not rescind his test refusal. The KDR timely filed a notice of appeal from the district court's judgment.
ANALYSIS
On appeal, the KDR claims the district court erred in reversing Jarvis' driver's license suspension. The KDR first argues that the district court erred by finding that Hirsch lacked reasonable suspicion to stop Jarvis' car. Second, the KDR argues that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case. Finally, for the first time on appeal, the KDR argues that even if the exclusionary rule applies in administrative proceedings, this court should remand Jarvis' case to the district court to determine if the good-faith exception applies to uphold the driver's license suspension.
Jarvis responds by arguing that the evidence supports the district court's finding that Hirsch lacked reasonable suspicion to stop his car. Jarvis also argues that the exclusionary rule applies to the administrative suspension of his driving privileges. Finally, Jarvis argues that the good-faith exception to the exclusionary rule does not apply in this instance to uphold the driver's license suspension.
When a driver challenges the administrative suspension of his or her driving privileges for failing to submit to a breath test, the district court holds a de novo trial. K.S.A. 2018 Supp. 8-1020(p). At trial, the driver bears the burden of proving the agency action should be set aside. K.S.A. 2018 Supp. 8-1020(q).
An appellate court generally reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial competent evidence is evidence that has both relevance and substance, and provides a substantial basis of fact from which the issues can be reasonably resolved. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 73, 350 P.3d 1071 (2015). In reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). Finally, resolution of the issue before this court also requires interpretation of K.S.A. 2018 Supp. 8-1020(p). Statutory interpretation is a question of law over which appellate courts have unlimited review. See Hoesli v. Triplett, Inc. , 303 Kan. 358, 362, 361 P.3d 504 (2015).
REASONABLE SUSPICION FOR THE CAR STOP
The KDR first claims the district court erred by finding that Hirsch lacked reasonable suspicion to stop Jarvis' car. This issue implicates Jarvis' constitutional right to be free of unreasonable searches and seizures by government officials.
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." See State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014).
A traffic stop is a seizure of the driver, and to comply with the Fourth Amendment, the officer conducting the stop must have reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. See K.S.A. 22-2402(1) ; Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968). Reasonable suspicion represents a minimum level of objective justification and is a lower standard than probable cause. City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). A traffic infraction provides an objectively valid reason to effectuate a traffic stop. State v. Jones , 300 Kan. 630, 637, 333 P.3d 886 (2014).
The KDR cites several cases to support its claim that the evidence at trial established reasonable suspicion for a stop. For instance, in State v. Field , 252 Kan. 657, 664, 847 P.2d 1280 (1993), the Kansas Supreme Court held that an officer had reasonable suspicion to stop a driver who was weaving in his own lane at 2 a.m., even though the officer did not see the driver commit a traffic violation. Similarly, in State v. Knight , 44 Kan. App. 2d 666, 676, 241 P.3d 120 (2010), this court held that an officer had reasonable suspicion to pull over a driver who had been weaving in and out of lanes without signaling and weaving within his lane late at night. See also State v. Campbell , No. 109,109, 2013 WL 6726167, at *4 (Kan. App. 2013) (unpublished opinion) (holding that officer had reasonable suspicion to pull over driver who weaved in his lane and varied his speed in the early morning hours).
Based on these cases, the KDR argues that Hirsch's testimony showed he had reasonable suspicion to stop Jarvis. The KDR highlights Hirsch's testimony that he saw Jarvis weaving in his lane and crossing the center line of the road around 1:45 a.m. Hirsch also told the court that he saw Jarvis almost hit a mailbox.
But the KDR ignores the district court's factual finding that Hirsch's testimony was not credible. The district court cited several reasons, based on the evidence, for not believing Hirsch's testimony that Jarvis was weaving on the road. For instance, Hirsch was unable to pinpoint any traffic violations on the video and his report did not include his observation of Jarvis almost hitting a mailbox. In reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. Chandler , 307 Kan. at 668, 414 P.3d 713.
In sum, Hirsch's testimony would have provided reasonable suspicion for the car stop had the district court found the testimony credible. But the district court found that Hirsch's testimony was not credible and we will not reweigh the evidence or make witness credibility determinations. Hirsch was the only witness to attempt to establish reasonable suspicion for the car stop. The district court found that Hirsch "articulated no credible reasonable suspicion justifying the stop and initial encounter." We conclude this finding is supported by the evidence in the record.
EFFECT OF THE 2016 AMENDMENT TO K.S.A. 8-1020(p)
Next, the KDR argues that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence resulting from the unlawful stop in this administrative driver's license suspension case. The KDR points out that in Martin v. Kansas Dept. of Revenue , 285 Kan. 625, Syl. ¶ 8, 176 P.2d 938, 176 P.3d 938 (2008), the Kansas Supreme Court held that the exclusionary rule is not applicable to driver's license suspension proceedings. Jarvis responds by asserting that " Martin is no longer good law given the 2016 amendment of K.S.A. 8-1020(p)." Jarvis goes on to argue that the exclusionary rule now applies to the administrative suspension of driving privileges.
To resolve the parties' claims, we will begin by reviewing our Supreme Court's decision in Martin . Next, we will examine the 2016 amendment to K.S.A. 8-1020(p), and we will discuss the effect of the statutory amendment on the Martin decision. Finally, we will focus on the district court's memorandum decision reversing the KDR's suspension of Jarvis' driving privileges, including whether the district court applied the exclusionary rule to set aside the driver's license suspension, and we will decide whether the district court's ruling was correct under the applicable law.
Martin v. Kansas Dept. of Revenue
We begin by reviewing our Supreme Court's decision in Martin . In that case, an officer stopped Martin's car based on the officer's erroneous belief that the car's malfunctioning rear brake light violated traffic ordinances. During the stop, the officer suspected that Martin was under the influence of alcohol. Martin later failed field sobriety tests and a chemical breath test. The KDR suspended Martin's driver's license based on the failed breath test. Martin challenged the administrative suspension and ultimately sought judicial review. The district court reversed the driver's license suspension, finding that the officer misinterpreted the law governing brake lights and, as a result, the officer lacked reasonable suspicion to stop Martin's car.
The Court of Appeals reversed the district court's decision, agreeing with the KDR that the propriety of a traffic stop is irrelevant in a driver's license suspension hearing. The Court of Appeals focused on the language of K.S.A. 8-1020(h)(2) that sets forth the scope of the administrative hearing in a driver's license suspension proceeding. Under that statutory provision, whether the officer has reasonable suspicion to initiate a traffic stop is not one of the exclusive issues that can be challenged in an administrative driver's license suspension proceeding. 285 Kan. at 627-28, 176 P.3d 938.
On a petition for review, our Supreme Court first analyzed whether the KDR can decide a constitutional claim, such as Martin's claim that the officer lacked reasonable suspicion to stop his car, at an administrative hearing. The court held that in view of the fact that a driver's license is a privilege rather than a right, the exclusion of a Fourth Amendment claim as an issue that can be decided at an administrative suspension hearing under K.S.A. 8-1020(h)(2) does not violate procedural due process. 285 Kan. at 633, 176 P.3d 938.
The court went on to hold that the rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum. 285 Kan. at 633-34, 176 P.3d 938. The court found that a driver's license suspension proceeding implicates the driver's constitutional rights under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights to be free from unreasonable searches and seizures. 285 Kan. at 634-36, 176 P.3d 938. In Martin's case, the court held that the officer's misunderstanding and misapplication of the ordinance on brake lights resulted in a finding that the officer lacked constitutional authority to stop Martin's car. 285 Kan. at 639, 176 P.3d 938.
Despite this finding, the court held that under the facts of Martin's case, the exclusionary rule did not require reversal of Martin's driver's license suspension. 285 Kan. at 639-46, 176 P.3d 938. After analyzing cases from the United States Supreme Court and several sister states, our Supreme Court held:
"The balance outlined by the United States Supreme Court between the benefits and costs of application of the exclusionary rule, when employed in driver's license suspension proceedings, tips in favor of the Department and against Martin and other drivers. The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others. Responsive administrative license regulation is essential to that public good. It should not be hamstrung by application of the rule here." 285 Kan. at 646, 176 P.3d 938.
But even in Martin , our Supreme Court left the door open to applying the exclusionary rule in an administrative proceeding such as a driver's license suspension case. Referring to one of its prior decisions on the application of the exclusionary rule, the court "noted that use of the rule might be warranted if, under a totality of circumstances, police misconduct was egregious. The facts here certainly do not reveal egregious police misconduct. [Citation omitted.]" 285 Kan. at 643, 176 P.3d 938.
Based on Martin , the KDR argues that under Kansas law, the exclusionary rule does not apply in administrative license suspension proceedings. So even if Hirsch unlawfully stopped Jarvis' car without reasonable suspicion of criminal activity in violation of Jarvis' constitutional rights, the KDR argues that the district court erred by applying the exclusionary rule to suppress the evidence resulting from the unlawful stop in an administrative driver's license suspension case. But Jarvis asserts that " Martin is no longer good law given the 2016 amendment of K.S.A. 8-1020(p)." We will next examine that amendment and discuss its effect on our Supreme Court's decision in Martin .
2016 amendment to K.S.A. 8-1020(p)
Kansas law governing tests for alcohol and drugs for any person who operates or attempts to operate a vehicle in this state, including the administrative license suspension of any driver who fails or refuses such testing, is found at K.S.A. 8-1001 et seq. As part of that statutory scheme, K.S.A. 8-1020 sets forth the procedure for any person to request an administrative hearing to challenge his or her driver's license suspension, followed by judicial review in accordance with the Kansas Judicial Review Act, K.S.A. 77-601 et seq. In 2016, about eight years after Martin , the Kansas Legislature made several changes to K.S.A. 8-1020. L. 2016, ch. 69, § 2. One of those changes added this language to subsection (p) addressing judicial review in a driver's license suspension case:
"Notwithstanding K.S.A. 77-617, and amendments thereto, the court: (1) May also consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter, even if such issue was not raised before the agency; and (2) shall also consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter, if such issue is raised by the petitioner in the petition for review, even if such issue was not raised before the agency. If the court finds that the grounds for action by the agency have been met, the court shall affirm." K.S.A. 2018 Supp. 8-1020(p).
Under K.S.A. 2018 Supp. 8-1020(p), on judicial review of the administrative suspension of a person's driver's license, the district court shall "consider and determine" any constitutional issue, including the "lawfulness of the law enforcement encounter," if such issue is raised in the petition for review, even if the issue was not raised before the agency. In fact, the district court may consider the constitutional issue even if it is not raised in the petition for review. The "lawfulness of the law enforcement encounter" certainly includes whether the officer has reasonable suspicion to initiate a traffic stop. The provision also states that "[i]f the court finds that the grounds for action by the agency have been met, the court shall affirm." K.S.A. 2018 Supp. 8-1020(p).
The district court applied K.S.A. 2018 Supp. 8-1020(p) in deciding whether to uphold the KDR's suspension of Jarvis' driver's license. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court concluded that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges." We must now decide whether the district court correctly applied the statute. As previously stated, interpretation of a statute is a question of law over which appellate courts have unlimited review. Hoesli , 303 Kan. at 362, 361 P.3d 504.
The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. Hoesli , 303 Kan. at 362, 361 P.3d 504. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).
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. Hoesli , 303 Kan. at 362, 361 P.3d 504. 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 legislative intent. Ullery , 304 Kan. at 409, 372 P.3d 1135.
Jarvis argues that the 2016 amendment to K.S.A. 8-1020(p) abrogates our Supreme Court's holding in Martin about the application of the exclusionary rule in administrative suspension cases. The KDR argues the opposite. To the extent there is any ambiguity in the statute, the legislative history shows that the amendment was enacted in response to the Martin decision to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in driver's license suspension cases. The Kansas Judicial Council's Criminal Law Advisory Committee report on the proposed amendment includes the following language:
"The most significant amendments in HB 2289 would change existing law to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop. In Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008), the Kansas Supreme Court held that the licensee could not raise the issue of the stop, even if it was unconstitutional, because the statute containing an exclusive list of the issues that could be raised during the administrative hearing did not authorize consideration of whether reasonable suspicion existed to support the traffic stop. Martin, 285 Kan. at 631-32 [176 P.3d 938]. Although the Martin case held that the constitutional issue can still be raised during the administrative hearing to preserve the issue for an appeal to the district court, the ability to do so is rendered virtually meaningless by the court's refusal to apply the exclusionary rule if the stop is in fact determined to have been unlawful. It has been argued that the statutory omission, combined with the holdings in the Martin case, negate 4th amendment protections and allow law enforcement to make stops for any reason or no reason. Although there is no constitutional right to obtain a driver's license, once it has been obtained, the licensee has a property right in the license that cannot be taken away without due process. Critics of the current law and its interpretation in Martin argue that the laws of the state should not encourage, or even tolerate, law enforcement officers to act outside the law." Report of Judicial Council Criminal Law Advisory Committee on House Bill 2289 (December 4, 2015).
Turning to judicial canons of construction, when construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with the view of reconciling and bringing the provisions into workable harmony, if possible. Friends of Bethany Place v. City of Topeka , 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). The courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. Milano's Inc. v. Kansas Dept. of Labor , 296 Kan. 497, 501, 293 P.3d 707 (2013).
When the Legislature revises an existing law, the court presumes the Legislature intended to change the law as it existed before the amendment. Stueckemann v. City of Basehor , 301 Kan. 718, 745, 348 P.3d 526 (2015). Courts generally presume that the Legislature acts with full knowledge about the statutory subject matter, including prior and existing law and judicial decisions interpreting the same. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 1000, 348 P.3d 602 (2015).
The KDR argues that the 2016 amendment to K.S.A. 8-1020(p) does not abrogate our Supreme Court's holding in Martin and that the exclusionary rule does not apply in administrative driver's license suspension proceedings. Before addressing this argument, we will briefly review the exclusionary rule and how it applies in court proceedings.
Neither the Fourth Amendment to the United States Constitution nor § 15 of the Kansas Constitution Bill of Rights expressly prohibits the use of evidence obtained in violation of their respective protections. Instead, to supplement the bare text of the Fourth Amendment, the United States Supreme Court created the exclusionary rule as a deterrent barring the introduction of evidence obtained in violation of the Fourth Amendment in criminal prosecutions. See Weeks v. United States , 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652 (1914) (recognizing exclusionary rule in criminal prosecution in federal court); Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081 (1961) (applying exclusionary rule in state court prosecution through the Fourteenth Amendment).
The exclusionary rule is generally applied in criminal prosecutions, but its application has been expanded to some administrative proceedings. For instance, in In re Tax Appeal of Burch , 296 Kan. 713, 715, 294 P.3d 1155 (2013), our Supreme Court remanded a case to the Court of Tax Appeals for consideration of whether the exclusionary rule applied to the KDR's attempt to collect a drug tax on marijuana that had been unlawfully seized from a person's vehicle. And as we have noted before, in Martin , our Supreme Court left the door open to the application of the exclusionary rule in an administrative driver's license suspension case if, under a totality of circumstances, the police misconduct was egregious. 285 Kan. at 643, 176 P.3d 938.
To support its argument that the district court erred in applying the exclusionary rule in Jarvis' case, the KDR cites Whigham v. Kansas Dept. of Revenue , No. 117,043, 2018 WL 1884742, at *3 (Kan. App. 2018) (unpublished opinion), rev. granted 308 Kan. 1602 (2018), in which a panel of this court held the exclusionary rule still does not apply in administrative driver's license suspension cases, even after the 2016 amendment to K.S.A. 8-1020(p). Whigham was decided after the district court filed its ruling in Jarvis' case. The defendant in Whigham argued that the 2016 amendment to K.S.A. 8-1020(p) abrogated Martin because the statutory amendment would be useless if it allowed the district court only to consider constitutional issues without the ability to suppress evidence resulting from an illegal search or seizure. But the Whigham court disagreed:
"[A]s currently written, K.S.A. 2017 Supp. 8-1020(p) does not go far enough to say that the Martin holding is no longer good law on this point. As previously cited, this subsection allows a court to consider 'any constitutional issue' and 'the lawfulness of the law enforcement encounter' to 'determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter.' Here, the Legislature chose the specific language used in this subsection. If it was the Legislature's intent to overrule the Martin holding or to allow the suppression of illegally seized evidence in administrative suspension hearings, the Legislature could have clearly expressed this intent. Nevertheless, K.S.A. 2017 Supp. 8-1020(p) contains no language allowing the suppression of this type of evidence in administrative suspension hearings. Because the absence of any such declarative language (allowing the suppression of illegally seized evidence) in K.S.A. 2017 Supp. 8-1020(p), we conclude that Whigham's argument is not currently warranted by the law." 2018 WL 1884742, at *3.
Our court's unpublished decision in Whigham is not final, as our Supreme Court has granted a petition for review. If we follow the panel's analysis in Whigham , then the KDR should prevail in this appeal. But as a general rule, one panel of the Court of Appeals is not bound by a decision of another panel of this court. Osterhaus v. Toth , 39 Kan. App. 2d 999, 1008, 187 P.3d 126 (2008). "Although separate panels of the Court of Appeals should strive to be consistent in decision-making, ultimately the court must do its best to decide each case based on the facts and the law, bearing in mind that the Kansas Supreme Court is the final arbiter of all disputes." State v. Horselooking , 54 Kan. App. 2d 343, 350, 400 P.3d 189, rev. granted 307 Kan. 990 (2017).
Analysis of the district court's ruling
The KDR argues that the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case. But we find it is unnecessary to decide whether the exclusionary rule applies to a driver's license suspension case in Kansas because the district court's ruling here was not based on an application of the exclusionary rule. After the district court found that Hirsch did not have reasonable suspicion to stop Jarvis, the district court went on to analyze the effect of the 2016 amendment to K.S.A. 8-1020(p) on Jarvis' driver's license suspension case. The district court did not suppress any evidence presented at the hearing. Instead, the district court set aside the KDR's suspension of Jarvis' driver's license based on the language of K.S.A. 2018 Supp. 8-1020(p), finding that the statute "justifies reversal of the administrative suspension of [Jarvis'] driving privileges."
In reaching its decision, the district court expressly rejected the parties' arguments about whether the exclusionary rule applied to suppress the evidence resulting from the unlawful car stop:
"The parties['] arguments based upon a judicially-created 'exclusionary rule' are misplaced. The issues for this review of the agency action are set by the Legislature. The Legislature has made it clear by the 2016 amendment that the initial police encounter is a justiciable issue in this case. The issue is not couched in terms of an exclusionary rule but rather in terms of the legality of the State action under the statutory Implied Consent law. [The KDR's] argument would nullify that amendment, something the Court is not inclined to do."
Although the district court found that the 2016 statutory amendment abrogated Martin 's holding that the exclusionary rule does not apply in administrative proceedings, the district court made it clear that it was relying on the language of the amended statute, not the judicially created exclusionary rule, to reverse the administrative suspension of Jarvis' driving privileges. The district court concluded its analysis by stating:
"The Legislature, rather than deferring to the Court's view on an exclusionary rule as such, has made the constitutionality of the initial police contact part of the judicial review of the administrative agency action and part of the authorization to impact a driver's license privileges under the Implied Consent law. The provision would be meaningless if constitutional claims 'have no practical effect,' as the [KDR] argues. And none of the cases that the [KDR] cites address the 2016 amendment to K.S.A. 8-1020(p). Accordingly, K.S.A. 8-1020(p) justifies reversal of the administrative suspension of [Jarvis'] driving privileges."
We agree with the district court's statutory analysis. Under K.S.A. 2018 Supp. 8-1020(p), on judicial review of the administrative suspension of a person's driver's license, the district court shall "consider and determine" any constitutional issue, including the "lawfulness of the law enforcement encounter," if such issue is raised in the petition for review, even if the issue was not raised before the agency. In fact, the district court may consider the constitutional issue even if it is not raised in the petition for review. So in other words, as the district court found, the Legislature has made it clear by the 2016 amendment to K.S.A. 8-1020(p) that the initial police encounter is a justiciable issue in a driver's license suspension case-at least when the case is on judicial review following the administrative hearing. The statute did not provide for the district court to consider and decide the "lawfulness of the law enforcement encounter" when Martin was decided.
K.S.A. 2018 Supp. 8-1020(p) also states that "[i]f the court finds that the grounds for action by the agency have been met, the court shall affirm." So under the statute, the "lawfulness of the law enforcement encounter" is a constitutional issue the district court can now decide in a driver's license suspension case, and the court shall affirm the suspension if it finds that the grounds for action by the agency action have been met. If the court shall affirm the agency action if it finds that the grounds for the agency action have been met, then the only logical inference is that the court shall reverse the agency action if it finds that the grounds for the agency action have not been met.
We do not rely on the legislative history of the 2016 amendment to K.S.A. 8-1020(p) to interpret its meaning. Instead, we find the text of the statute is sufficiently clear to convey the Legislature's intent that on judicial review of the administrative suspension of a person's driver's license, the district court can consider and determine constitutional issues, such as the lawfulness of the law enforcement encounter, and the court's resolution of such an issue will affect its ultimate decision whether to uphold the driver's license suspension. And although we find it unnecessary to resort to any canons of statutory construction to ascertain the legislative intent, we agree with the district court that to interpret the statute in any other way would render the amendment meaningless.
To sum up, the district court considered the circumstances of Jarvis' car stop and found that the law enforcement encounter was unlawful. Under K.S.A. 2018 Supp. 8-1020(p), the district court was authorized to find that the grounds for the agency action had not been met, so the court set aside Jarvis' driver's license suspension. The district court's ruling was based on a proper application of the statute to the facts of the case, and the judicially created exclusionary rule played no part in the court's ruling. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court did not err in concluding that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges."
Good-faith exception
Lastly, for the first time on appeal, the KDR argues that even if the exclusionary rule does apply in administrative driver's license suspension cases, this court should remand Jarvis' case to the district court to determine if the good-faith exception applies. The KDR has made no attempt in its brief to comply with Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) to explain why this issue should be considered for the first time on appeal. As a result, the issue is improperly briefed and is deemed abandoned. See State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). More importantly, because the district court's ruling was not based on an application of the exclusionary rule, there would be no reason to remand this case to the district court to determine if the good-faith exception to the exclusionary rule applies to uphold Jarvis' driver's license suspension.
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