text:
    STATE of Kansas, Appellee, v. Brad A. STARLIN, Appellant.
    No. 120,346
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Brad A. Starlin pled no contest to one count of possession of a drug upon the grounds of a correctional facility. At sentencing, the district court granted Starlin's motion for a durational departure and sentenced him to an 18-month sentence. The district court noted that the sentence was "consecutive to his current charges." At the end of the sentencing hearing, the county attorney read into the record what he maintained was "the case numbers that this case runs consecutive to." In so doing, the county attorney omitted Cowley County case No. 2010-CR-349. The district court, however, included this case in its journal entry and indicated that the sentence in this case was consecutive to all of the cases, including the one omitted at the sentencing hearing.

Starlin later moved to correct an illegal sentence. He contended that the pronouncement at sentencing controlled and, because the Cowley County case was not included in the county attorney's recitation of cases, his current sentence must be concurrent with that sentence. The district court denied that motion, ruling that the Kansas statutes mandated that a crime committed while incarcerated and serving a sentence for a felony must be consecutive to all pending cases.

On appeal, Starlin contends that the district court erred when it denied his motion to correct an illegal sentence because the record did not affirmatively show that the sentence in this case was consecutive to the Cowley County case. We granted Starlin's motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State responded to this motion for summary disposition, and it joined in the request for summary disposition.

We are guided in this inquiry by K.S.A. 2018 Supp. 21-6606. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). K.S.A. 2018 Supp. 21-6606(a) states in part, the following: "Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as otherwise provided in subsections (c), (d), and (e)." K.S.A. 2018 Supp. 21-6606(e)(1) states as follows: "Any person who is convicted and sentenced for a crime committed while such person is incarcerated and serving a sentence for a felony in any place of incarceration shall serve the sentence consecutively to the term or terms under which the person was incarcerated." Because Starlin was incarcerated, which he does not dispute, and serving a sentence for a felony, the sentencing judge was bound by K.S.A. 2018 Supp. 21-6606(e)(1) to rule that his sentence for possession of a drug upon the grounds of a correctional facility would be consecutive to his conviction in the Cowley County case. As a result, Starlin's argument fails.

Affirmed.


source: Caselaw Access Project

author: Leben, J.:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Roy L. W. TIDWELL III, Appellant.
    No. 120,230
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Leben, J.:

Roy Tidwell appeals the district court's decision to order Tidwell to serve his sentences for rape and trading child pornography consecutive to each other. Tidwell argues that the district court should have made the sentences concurrent with one another so that he might have a reasonable chance to be released from prison before old age.

But whether a defendant should be ordered to serve sentences consecutively (one after the other) or concurrently (at the same time) is a judgment call for the district court to make, subject to review only for abuse of discretion. We find no abuse of discretion in the district court's decision to order Tidwell to serve his sentences consecutive to each other.

Tidwell pleaded no contest to one count of rape and one count of aggravated internet trading in child pornography, both off-grid felonies. The victim in each case was the same 3-year-old girl; Tidwell was 26. Tidwell put his finger into the child's vagina and sent photos of the nude child to another man.

The district court sentenced Tidwell to life in prison with a minimum of 25 years before the possibility of parole for each count, which the court ordered Tidwell to serve consecutively. On appeal, Tidwell argues that the district court should have ordered him to serve his sentences concurrently so he could have a chance at rehabilitation and " 'a chance to have some life.' "

Whether sentences should be concurrent or consecutive is a decision that falls within the district court's discretion. State v. Jamison , 269 Kan. 564, 576, 7 P.3d 1204 (2000). So we review the district court's decision in Tidwell's case only for abuse of discretion. Unless the court has made a legal or factual error, we may find an abuse of discretion only when no reasonable person would agree with the decision made by the trial court. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011).

The district court isn't required to give reasons to support its decision to make sentences concurrent or consecutive. State v. Urista , 45 Kan. App. 2d 93, 96, 244 P.3d 287 (2010), rev'd on other grounds , 296 Kan. 576, 293 P.3d 738 (2013). In a case like this one, though, the decision is obviously an important one, and the district court here gave some explanation for its decision. It said that the sentences for the two crimes should be served consecutively because they were two separate crimes: "One is the rape, which is the digital penetration of the three-year-old child. And the other crime is the ... transmission of the act ... over a[n] internet forum ..., just sending out ... child pornography."

Even though the court provided that brief explanation, it was able to consider all the information presented to it in making this decision. In addition to the crimes against the three-year-old victim in this case, the State noted at sentencing Tidwell's admission to a law-enforcement agent that Tidwell had committed sexual crimes against another child in another Kansas community. Of course, even without consideration of those additional acts against another child, the crimes committed against the three-year-old victim in this case by themselves merit strong punishment.

When considering whether a district court decision is an abuse of discretion, we do not look to see whether any other decision would have been reasonable too. Our task is merely to ask whether a reasonable person could agree with the decision that the district court made. We conclude that a reasonable person could agree with the decision made here. Tidwell does not claim a factual or legal error-the other potential bases for a finding of abuse of discretion-so we find no abuse of discretion here. See State v. McMullen , 290 Kan. 1, 10, 221 P.3d 92 (2009) (holding that there was no abuse of discretion in imposing consecutive sentences for two counts of off-grid sexual offenses).

On Tidwell's motion, we accepted this appeal for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). We have reviewed the record available to the district court, and we find no error in its decision to run Tidwell's sentences consecutively.

We affirm the district court's judgment.


author: Per Curiam:

text:
    STATE of Kansas, Appellee, v. Nicholas Arthur CLARK, Appellant.
    No. 117,951
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
    Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Arnold-Burger, C.J., Atcheson, J., and Burgess, S.J.
    MEMORANDUM OPINION
   Per Curiam:

At the end of a five-day trial, a jury in Leavenworth County District Court found Nicholas Arthur Clark guilty of two counts of aggravated indecent solicitation of a child and two counts of aggravated indecent liberties with a child based on sexual encounters he had with a 13-year-old girl who attended an after-school program where he worked. Clark has asserted challenges to the district court's jury instructions, evidentiary rulings, and decisions affecting trial procedures. We find no reversible error on those points and affirm the convictions and Clark's sentence.

FACTUAL AND PROCEDURAL HISTORY

Given the appellate issues, we may condense the trial evidence with the understanding the parties know well the details unrelated to our review.

Clark began working in April 2014 as a paraprofessional in an after-school program for children at a youth center on the Fort Leavenworth base. He was 21 years old. M.M., then a seventh grader, had been enrolled in the program for some time. Clark and M.M. discovered they had mutual interests and enjoyed talking with each other at the youth center during program hours.

That summer M.M. continued in the program at times corresponding to her mother's work schedule. Clark and M.M. continued their in-person friendship and began communicating through text messages and related social media. In July, they arranged to meet elsewhere after M.M. went to a girlfriend's house with her parents' permission. They met and talked with each other on a street near M.M.'s friend's house for about 15 minutes. They hugged, and Clark left.

A few days later, they again met after M.M. went to her girlfriend's house. This time Clark drove M.M. to his apartment. They watched a movie. Clark asked M.M. if she wanted to cuddle; she agreed. According to M.M., they "made out" in the living room and moved to the bedroom, where they partially undressed. Clark drove M.M. back to her girlfriend's house. Their encounter lasted several hours.

Clark and M.M. arranged three more meetings over the next week, all at Clark's apartment. M.M. later described what happened with Clark to law enforcement officers, a civilian forensic examiner, and ultimately to the jurors during the trial. In addition to M.M.'s in-court account, the jurors heard what she had said in the out-of-court interviews. Although the versions varied in the amount of detail M.M. related and in some of her specific recollections, M.M. described serial sexual acts with Clark. At trial, M.M. focused on what happened during one of the encounters and essentially testified that the same things happened the other two times. M.M. said Clark touched her breasts and her pubic area during the last three visits to the apartment. One time Clark asked her to engage in oral sex; M.M. said she touched his penis with her hand instead. M.M. denied they had sexual intercourse. But she said Clark digitally penetrated her vagina.

Clark's relationship with M.M. came to light after M.M.'s mother discovered sexually oriented text messages on M.M.'s cell phone. M.M.'s parents contacted law enforcement authorities who began an investigation. As we indicated, M.M. was interviewed multiple times during that process. Investigators also recovered text messages and other evidence from her cell phone. Some of the communications were sexually suggestive exchanges, and, particularly pertinent to the criminal charges, some of those messages related to oral sex. M.M. told investigators she exchanged the messages with Clark, although he used a pseudonymous screen name.

A Lansing police officer questioned Clark after he voluntarily appeared at the law enforcement center. Clark denied any improper communication or contact with M.M. Clark permitted the officer to look at his phone and the material on it. After having Clark reload the app used for the communications, the officer found some messages corresponding to those that had already been recovered from M.M.'s phone. The officer seized Clark's phone. Law enforcement authorities later obtained a warrant to search the phone, although they found no communications with M.M. stored in the phone's memory. During the investigation, law enforcement officers interviewed a number of other witnesses, including M.M.'s girlfriend and employees of the after-school program.

The State charged Clark in February 2015 with one count of statutory rape, a felony violation of K.S.A. 2014 Supp. 21-5503(a)(3) ; two counts of aggravated indecent solicitation of a child, felony violations of K.S.A. 2014 Supp. 21-5508(b)(1) ; two counts of aggravated indecent liberties with a child, felony violations of K.S.A. 2014 Supp. 21-5506(b)(3)(A) ; and furnishing alcohol to a minor for illicit purposes, a felony violation of K.S.A. 2014 Supp. 21-5607. The jury trial began in late January 2017.

Clark testified in his own defense and called several other witnesses during the trial. Consistent with his account to the police, he denied having anything to do with M.M. apart from their interaction at the youth center. He also denied sending text messages to M.M. that were sexually oriented or that outlined arrangements to meet with her. Clark suggested the particular app he used would have permitted someone else to create the messages and then to forward them to his phone.

During the trial, the district court dismissed the alcohol charge before submitting the case to the jury. The jury could not reach a verdict on the rape charge and convicted Clark on the other four counts. The State dismissed the rape charge rather than retry Clark.

At a later hearing, the district court sentenced Clark to concurrent 32-month terms of imprisonment for the aggravated indecent solicitation convictions to be served consecutively to concurrent 59-month terms of imprisonment for the aggravated indecent liberties convictions, yielding a 91-month period of incarceration. The district court also placed Clark on postrelease supervision for 24 months and ordered him to comply for life with the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.

Clark has appealed.

LEGAL ANALYSIS

As we have indicated, Clark has asserted diffuse challenges attacking the jury's guilty verdicts. We take those up as he has presented them, adding necessary factual and legal context.

Jury Instruction on Aggravated Indecent Solicitation of a Child

Clark contends the State failed to present sufficient evidence to convict him of aggravated indecent solicitation of a child given how the elements of the crime were set out in the jury instructions. Although we agree the wording in the two instructions outlining what the State had to prove for convictions on those charges may have been technically amiss, the phrasing injected no reversible error, especially in the absence of any trial objection from Clark. As we explain, the argument turns on shades of meaning likely lost on all but true word mavens.

We begin with K.S.A. 2014 Supp. 21-5508, the statute criminalizing aggravated solicitation of a child. Pertinent here, the statute criminalizes "persuading or attempting to persuade a child under the age of 14 years to: (1) Commit or submit to an unlawful sexual act." (Emphasis added.) K.S.A. 2014 Supp. 21-5508(b)(1). In turn, K.S.A. 2014 Supp. 21-5501(d) defines "[u]nlawful sexual act" as "any rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as defined in this code." A defendant may be guilty of aggravated solicitation by trying to get a child to commit an act that would be lewd and lascivious. For example, an invitation to the child to touch himself or herself in a sexual way would violate the statute. More commonly, perhaps, a defendant may be guilty by pressuring the child to submit to a proscribed sex act with the defendant or a third person.

In this case, the district court instructed the jurors that to find Clark guilty, they had to conclude he "attempted to persuade [M.M.] to commit aggravated indecent liberties with a child." (Emphasis added.) The jurors were told that aggravated indecent liberties means "engaging in ... any lewd fondling or touching of ... the child [who is less than 14 years old] or the offender ... with the intent to arouse or satisfy the sexual desires of either the child or the offender." The instructions for each count were identical except for the date the alleged crime happened. The State relied on text messages from Clark to M.M. suggesting she touch his penis with either her mouth or her hand as the factual basis for the charges.

On appeal, Clark argues the evidence (if believed) showed he tried to persuade M.M. to submit to aggravated indecent liberties with a child when he asked her to touch him sexually. Clark completes the argument by positing that M.M. could not commit aggravated indecent liberties with a child under the circumstances, since she would be the child identified in the crime and, thus, either would be committing the crime against herself or that he would have to be the victim and he is not a child under 14 years old. The argument certainly presents a linguistic curlicue.

Clark frames the issue as one of sufficiency of the evidence. That is, the evidence did not legally support the crime charged and then described in the jury instructions. We disagree with the characterization of the purported problem with the charges and the jury instructions. In considering a claim of insufficient evidence, we look at what was submitted to the jury in the best light for the State, as the prevailing party, and ask whether reasonable jurors could find the defendant guilty beyond a reasonable doubt. Witness credibility determinations and any conflicts in the evidence must be resolved to the State's benefit. State v. Parker , 309 Kan. 1, 13-14, 430 P.3d 975 (2018). Viewed that way, there was sufficient evidence that Clark invited M.M. to touch him in a lewd manner.

Clark's complaint really challenges the description of the elements of the crime in the jury instructions because the district court used the word "commit" rather than "submit" to outline those elements. Not surprisingly, the general rule requires that jury instructions accurately state the law and do not mislead or confuse the jurors. See State v. Betancourt , 299 Kan. 131, 136, 322 P.3d 353 (2014). Clark did not object in the district court to the phrasing of the instructions on aggravated solicitation of a child. While the failure to object during trial does not bar appellate review of jury instructions, we apply a more demanding standard requiring the complaining party to demonstrate clear error. To grant Clark relief for clear error, we must be firmly convinced the jury would have come to a different result absent the purported defect in the instructions. See K.S.A. 2018 Supp. 22-3414(3) (clear-error standard applicable to jury instructions given without timely objection in district court); State v. Cameron , 300 Kan. 384, 388-89, 329 P.3d 1158 (2014) (appellate court must be "firmly convinced" of different result to find clear error). Clark bears the burden of proving clear error. 300 Kan. at 390.

As we have indicated, the instructions read in a hypertechnical or super literal way arguably require the jurors to conclude M.M. committed the crime of aggravated indecent liberties with a child. That is, she was the perpetrator of criminal conduct rather than the victim. But such a reading of the instructions would be nonsensical in this case. Reasonable jurors would fairly understand the instructions to refer to Clark's attempt to get M.M. to participate in aggravated indecent liberties with a child, albeit as a victim. In context, we decline to find the instructions to be clearly erroneous because they used the word "commit" rather than "submit" to describe M.M.'s involvement. The instructions did not mislead or confuse the jurors. The jurors would have convicted Clark had the district court used "submit" rather than "commit" in the elements instructions. The difference in wording didn't materially redefine the crime so that the jurors would have been induced either explicitly or implicitly to convict Clark in the absence of evidence establishing his guilt of aggravated indecent solicitation of a child beyond a reasonable doubt.

Instructions using "submit" might have been linguistically (and legally) more precise. But a jury instruction is not erroneous simply because a better one might have been crafted. See State v. Herbel , 296 Kan. 1101, 1124, 299 P.3d 292 (2013) (Although a newer pattern jury instruction may be better than what it replaced, that didn't make the earlier instruction erroneous.). More to the point here, as we have said, the instructions on aggravated indecent solicitation of a child were not clearly erroneous. So Clark has failed to establish any legal basis for relief.

Convictions for Aggravated Indecent Liberties with a Child

Clark contends his convictions for aggravated indecent liberties with a child are multiplicitous, given the way the jurors were instructed on those crimes. Multiplicitous convictions generally arise when the State charges what is a single crime in more than one count, thereby exposing a defendant to multiple convictions and punishments. Pyramiding punishments for what is actually one criminal wrong violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See State v. Pribble , 304 Kan. 824, 826, 375 P.3d 966 (2016).

The charges filed against Clark were not themselves multiplicitous. They allege distinct incidents on different days entailing illegal conduct amounting to aggravated indecent liberties with M.M. Each charged incident properly would be considered a separate crime and, if proved, would support a separate conviction.

But Clark's argument looks at how the crimes have been described in the jury instructions-not how they were stated in the complaint. The instruction on one of the counts required the jury to find that Clark lewdly touched M.M.'s breasts on or about August 2 or August 3, 2014. The instruction for the second count required the jury to find that Clark lewdly touched M.M.'s vagina on or about August 2 or August 3, 2014. Basically, M.M. testified that on each of three occasions she went to Clark's apartment, he touched her breasts and her vagina during their sexual activity there.

There is a fair argument that all of the sexual contact between Clark and M.M. during a given visit constituted one instance of aggravated indecent liberties with a child and had to be charged as a single crime. In other words, the State arguably could not have charged Clark with two counts of aggravated indecent liberties with a child for touching M.M.'s breasts and vagina during the same encounter. All of the improper physical contact would have been part and parcel of a unitary act of indecent liberties punishable as a single crime. See State v. Sprung , 294 Kan. 300, 306-11, 277 P.3d 1100 (2012) (multiple instances of sexual contact between defendant and victim during one incident in defendant's office constituted a single count of aggravated indecent liberties with a child and was improperly charged as two counts).

The instructions permitted the jurors to convict Clark of two counts of aggravated indecent liberties with a child for the sexual contact with M.M. occurring only on August 2 or only on August 3. We can't say that's the conclusion the jurors reached-only that they might have. It is also possible they convicted Clark on one of the counts for conduct during M.M.'s August 2 visit to his apartment and convicted him of the second count for conduct during the August 3 visit. The first scenario superficially suggests a multiplicity problem; the second does not.

The Kansas Supreme Court confronted a legally and factually indistinguishable situation in State v. Kessler , 276 Kan. 202, 209, 73 P.3d 761 (2003), and rejected the defendant's multiplicity argument and affirmed his conviction for two counts of aggravated indecent liberties with a child. In that case, Kessler was charged with two counts based on distinct encounters with the victim. The victim said Kessler touched his penis during each of several encounters and also touched his buttocks during one of those encounters. As in this case, the district court used instructions for each of the aggravated indecent liberties counts that differed only in the alleged physical act: One alleged Kessler touched the victim's penis, and the other alleged Kessler touched the victim's buttocks. Each count identified the same nonspecific date range for the offense.

On appeal, Kessler argued the convictions were multiplicitous because the jury could have relied on improper contact during a single encounter to support both counts. The court dismissed the argument as unpersuasive. 276 Kan. at 209. The court reasoned that the verdicts established that the jurors found the victim to be a credible witness. The jurors heard the victim's account. Kessler's defense consisted of an attack on the veracity of the victim, his mother, and other witnesses for the State. Kessler did not testify but called two character witnesses. Given the jurors' credibility determination, the evidence-primarily the victim's version of what happened to him-established separate incidents supporting each of the counts. The court found that obviated any ostensible multiplicity problem with the convictions. 276 Kan. at 209.

The Kessler decision remains good law on this point and is binding authority. We see no principled basis for distinguishing Kessler factually or legally from the circumstances here. Accordingly, we find Clark's multiplicity argument lacks merit. We do, however, pause to reiterate the Kessler court's closing admonition on this point: "[T]he better practice would be for the jury instructions to specify the differences in the dates of the events charged or some other specific characteristics of the events to avoid any suggestion of confusion" in the face of a multiplicity claim. 276 Kan. at 209.

Admission of Text Message Screenshots

Law enforcement officers took photographs of text messages displayed on the screens of M.M.'s and Clark's cell phones. Some of the communications were sexually charged and, thus, tended to incriminate Clark. He objected to the admission of the photographs at trial as a violation of the best evidence rule. The district court admitted the photographs, and Clark has reprised the point on appeal.

In general terms, a best evidence rule requires the production of an original document or writing in the face of a bona fide dispute over the accuracy of a copy or of witness testimony characterizing its content being offered in place of the original. The objective is to avoid inaccuracy and prevent outright fraud as to the writing's content. See United States v. Diaz-Lopez , 625 F.3d 1198, 1201-02 (9th Cir. 2010) ; 2 McCormick on Evidence § 232 (7th ed. 2016) ("The danger of mistransmitting critical facts through the use of written copies or recollection justifies preference for original documents."); 29A Am. Jur. 2d Evidence § 1035. Kansas codified a best evidence rule in 1963 and last amended the rule 30 years ago. K.S.A. 60-467. The rule requires the production of an original "writing" subject to enumerated exceptions. The term "writing" has been broadly defined in the rules of evidence to include "handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form or communication or representation." K.S.A. 60-401(m).

The Kansas best evidence rule shows its age when electronic or digital communication is at issue, as the Kansas Supreme Court recently recognized. State v. Robinson , 303 Kan. 11, 221-22, 363 P.3d 875 (2015), disapproved on other grounds by State v. Cheever , 306 Kan. 760, 402 P.3d 1126 (2017). The court pointed out that K.S.A. 60-467 fails to directly address materials originally generated only in an electronic format and, thus, having no distinct physical existence in the way a deed or a handwritten letter does. In Robinson , the court looked to the Federal Rules of Evidence and their treatment of electronic documents under the best evidence rule to augment an antiquated and largely inapt Kansas rule. 303 Kan. at 224-25. The court held that a printout of an e-mail constituted an original writing for best evidence purposes. 303 Kan. at 225.

Following the lead of Robinson , we find the photographs of the text messages to be original writings satisfying the best evidence rule. They are functionally like printed copies of e-mails. And photographs are included in the statutory definition of writings used in the rules of evidence. The law enforcement officers who took the photographs of the text messages described for the jurors what they did and testified that the photographs accurately depicted what they saw on the screens of the cell phones. That is sufficient to meet the best evidence requirements of K.S.A. 60-467 and of the Robinson standard for electronic media.

On appeal, Clark argues that the text messages may have been imported into his cell phone by someone hacking his account with the company that furnishes the communication app. So he disclaims authorship of the messages. Although he casts the argument as a best evidence issue, it really isn't. Clark does not dispute that the photographs accurately show what the officers saw on his cell phone or M.M.'s cell phone and, thus, the verbal content of the text messages. He isn't asserting the content of the messages had been altered in the photographs to make them appear to say something they did not.

Clark's complaint goes to the authentication or authenticity of the messages as communications he wrote. That's a different evidentiary issue. Authentication is addressed in K.S.A. 60-464 and simply requires evidence sufficient to support authenticity-the document is what it purports to be. Robinson , 303 Kan. at 225. Authentication, as a rule of admissibility, presents a comparatively low threshold that may be satisfied with circumstantial evidence. 303 Kan. at 225. Here, the text messages were on Clark's phone and included exchanges with M.M. The content of the messages conformed generally to M.M.'s accounts of her meetings with Clark. That sort of evidence presumably would be sufficient to authenticate the text messages, clearing the way for their admission as evidence. We needn't decide the point, since Clark has not couched his appellate argument as one based on lack of authentication. Clark's argument that the text messages appeared on his phone not because he composed them but as the result of a hack by a third party would go to the weight rather than the admissibility of the communications as evidence. Robinson , 303 Kan. at 226 (upon showing of authenticity, "discrepancies and other conflicting evidence go to the weight, not the admissibility" of the material).

In sum, Clark has not shown the district court violated the best evidence rule in admitting the photographs of the text messages.

District Court's Procedural Rulings

Clark challenges three procedural rulings the district court made during trial: (1) instructing his lawyer to stop objecting during the testimony of a detective the State called to explain the forensic examination of Clark's cell phone; (2) dismissing a defense witness offered as an expert on interviewing child victims of sexual abuse in the midst of her testimony; and (3) requiring Clark to testify before other defense witnesses who were unavailable late in the day because the lawyer anticipated calling them the next morning. Under the circumstances, we find the district court's rulings did not materially compromise Clark's right to a fair trial and, thus, resulted in no legal prejudice requiring a remedy. But the district court's handling of those situations carried potential risks that might have been avoided. We now look at each ruling.

As the detective was explaining his examination of Clark's cell phone to the jurors, Clark's lawyer launched frequent objections to the testimony. For the most part, the district court overruled the objections. The lawyer continued to object. The district court told the lawyer the objections had become "cumulative" and were simply disrupting the flow of the detective's testimony, impeding the jurors' ability to understand the evidence. The district court characterized the lawyer's conduct as "obstructionist" and, therefore, "prohibit[ed]" the lawyer from making any more objections to the witness' testimony in front of the jury. The district court said it would consider any further objections at the end of the day after the jury had been excused.

District courts enjoy wide discretion in how they conduct trials-flexibility designed to accommodate unexpected or unusual situations while preserving the parties' right to a fair hearing. See State v. Rochelle , 297 Kan. 32, 36, 298 P.3d 293 (2013) ("[T]he trial judge must keep order in the courtroom and has broad discretion in controlling courtroom proceedings."); Venters v. Sellers , 293 Kan. 87, 92, 261 P.3d 538 (2011) (district court exercises "supervisory powers" over how lawyers conduct litigation). We typically review district court decisions affecting trial procedures and receipt of relevant evidence for abuse of that discretion. A district court exceeds its discretion by ruling in a way no reasonable judicial officer would under the circumstances, by ignoring controlling facts or relying on unproven factual representations, or by acting outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 935, 296 P.3d 1106 (2013) ; State v. Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

We need not delve deeply into this issue. Clark's trial lawyer did not offer additional objections to the detective's testimony after the district court's prohibition. That is, the lawyer voiced no objections when given the opportunity to do so at the end of the day. In the absence of any proffered objections, we cannot say Clark's defense was compromised as the result of the district court's order. On appeal, Clark has not pointed to inadmissible testimony from the detective after that order. In short, we can't say the district court committed reversible error.

Given the circumstances, we do not need to review the accuracy of the district court's assessment that Clark's lawyer had begun to lodge specious objections as a trial tactic to interfere with the orderly presentation of the detective's testimony. If the district court were mistaken, the prohibition could be treated as harmless error in the absence of any objections. Even if the district court was correct in that assessment, its response may have flirted with potential trial error. Had the prosecutor elicited inadmissible and unduly prejudicial testimony from the detective, the district court eliminated any ready way for Clark's lawyer to signal the need for an immediate corrective, such as an admonition to the jurors to disregard the testimony. The cumulative impact of less harmful, though still inadmissible, testimony similarly might have been difficult to undo well after the jurors heard and contemplated the evidence. Under the district court's limitation, the soonest the jurors could have been told to disregard any improperly admitted testimony would have been the following morning.

We recognize the district court had limited options in putting an end to what it considered highly improper conduct from Clark's lawyer. Rather than altering the usual trial process by prohibiting contemporaneous objections, the district court could have warned Clark's lawyer that she would face sanctions if she persisted in making improper objections. Had the sanctions failed to garner compliance, the district court could have resorted to other remedies.

As to the second complaint, Clark called as an expert witness a nurse trained to conduct forensic physical examinations of victims of rape or other sexual assault to collect biological and other evidence and to document apparent injuries consistent with abuse. During the direct examination of the nurse, Clark's lawyer began asking questions about the proper way to interview a child victim of sexual assault. The prosecutor objected, and the nurse acknowledged she did not have any particular expertise in how those sorts of interviews should be done. Clark's lawyer, nonetheless, continued asking questions about forensic interview techniques, drawing additional objections the district court sustained. Ultimately, the district court simply terminated the examination of the nurse and excused her as a witness.

On appeal, Clark contends the district court's ruling impinged upon his right to present a defense. We are unpersuaded given the circumstances. First, the nurse was not qualified to provide expert testimony on the proper way to interview a child victim. So her opinions on that subject generally or how M.M. had been interviewed were inadmissible. See K.S.A. 2016 Supp. 60-456(b). Clark can't construct error from the district court's refusal to admit as evidence something that should not have been admitted.

In addition, Clark's trial lawyer did not suggest (or proffer) that the nurse would offer admissible testimony on some other relevant point. Accordingly, Clark cannot show error because the nurse was excused without finishing her testimony. See State v. Deal, 271 Kan. 483, 489-90, 23 P.3d 840 (2001), overruled on other grounds by State v. Davis , 283 Kan. 569, 158 P.3d 317 (2006) ("Failure to make a proffer of excluded evidence precludes appellate review."). The district court's decision to abruptly excuse the witness in the midst of her testimony to the jury was, in a word, unorthodox. But we see no abuse of discretion in doing so in this particular situation, especially in the absence of a proffer from Clark's lawyer or some protest from the prosecutor, who lost any opportunity to question the witness.

Finally, Clark complains about how he had to present his own testimony to the jury. As we have indicated, Clark called several defense witnesses and also testified himself. Clark's father had concluded his testimony as a defense witness well into the afternoon on the fourth day of trial. Clark's lawyer anticipated calling the remaining witnesses, including Clark, the next morning. So those witnesses (other than Clark) were not at the courthouse. Reluctant to lose what appeared to be about an hour of available time that afternoon, the district court basically ordered that Clark should then take the stand if he intended to testify at all. Clark's lawyer indicated she wanted to present the other defense witnesses before having Clark testify. In the face of the district court's directive, however, she had Clark testify that afternoon.

On appeal, Clark reiterates that the district court's ruling upset his ability to present his defense. But he offers nothing more. He does not suggest he lost the opportunity to present evidence or that his testimony was somehow different or impaired because he testified late on the next to last day of trial rather than sometime on the last day. Nor does he now say he wouldn't have testified at all. Clark, therefore, has failed to show that the district court's order deprived him of a fair trial.

We, however, offer another cautionary observation. Criminal defendants have a constitutional right not to incriminate themselves protected in the Fifth Amendment to the United States Constitution. Accordingly, a criminal defendant cannot be compelled to testify. In at least some criminal cases, a defendant might choose not to testify precisely because other defense witnesses have ably presented testimony calling into question his or her guilt, substantially reducing any benefit to him or her from taking the stand and facing cross-examination. Conversely, if the defense witnesses turn out to be less compelling than anticipated, a defendant may see significant benefit in testifying. So while a district court can require a party to have witnesses available to fill trial time even if that disrupts the lawyer's desired ordering of evidence, that authority ought to be exercised with considerable circumspection when it comes to telling a criminal defendant when he or she must testify in the defense case. An order of that sort has a constitutional overlay implicating the defendant's right against self-incrimination. Here, however, that right does not appear to have been compromised, and Clark makes no such claim. So we simply say that a district court may be improvidently courting risk by ordering a criminal defendant to testify at a certain point in the defense case merely to accommodate an otherwise laudable desire to move the case along or to avoid a brief delay in presenting evidence to a sitting jury.

Cumulative Error

For his final point, Clark contends cumulative error deprived him of a fair trial. Appellate courts will weigh the collective impact of trial errors and may grant relief if the overall result of the imperfections deprives the defendant of a fair hearing even when the errors considered individually could be considered harmless. State v. Smith-Parker , 301 Kan. 132, 167-68, 340 P.3d 485 (2014). An appellate court looks at the entire trial record to assess the aggregate effect of multiple trial errors. 301 Kan. at 168.

We find no basis for granting relief to Clark based on cumulative error. We have identified a technical problem in the jury instructions on aggravated indecent solicitation of a child. To the extent that may be categorized as error, it had no significant impact on the jurors or their verdicts. Likewise, if the district court erred in requiring Clark's lawyer to hold objections to the detective's testimony until he finished or in requiring Clark to testify before some of the other defense witnesses, Clark has pointed to no actual prejudice resulting from those rulings. The other points he has raised on appeal do not amount to error at all. The combined effect of the ostensible errors was, at most, negligible and did not compromise Clark's right to a fair trial. See State v. Cruz , 297 Kan. 1048, 1075, 307 P.3d 199 (2013) ("As we have recognized for decades, '[a] defendant is entitled to a fair trial but not a perfect one[.]' ") (quoting State v. Bly , 215 Kan. 168, 178, 523 P.2d 397 [1974] ).

Affirmed.


text:
    STATE of Kansas, Appellee, v. Willie James WELLINGTON, Appellant.
    No. 120,344
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Willie James Wellington pled guilty to one count of possession of marijuana, a severity level 5 drug felony, and one misdemeanor count of violating a protective order. At sentencing, the district court found Wellington's criminal history score was B. Wellington moved for a dispositional departure with the State recommending the same. The district court sentenced Wellington to a controlling term of 34 months' imprisonment, but granted a departure of 12 months' probation.

On appeal, Wellington contends that the district court abused its discretion by imposing the sentence when probation sanctions remained an available alternative because he demonstrated a continuing need for drug treatment. We granted Wellington's motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State responded to the motion for summary disposition, and it joined in the request for summary disposition.

On October 5, 2018, Wellington stipulated to violating the terms of his probation by failing to report, failing to comply with a curfew, failing to submit to testing, and consuming alcohol or drugs. Wellington moved for reinstatement to probation arguing that sanctions were appropriate. Citing the circumstances surrounding Wellington's various compliance issues, specifically the failure to report for several months and the failure to obtain drug and alcohol treatment, the district court denied reinstatement, revoked his probation, and imposed the underlying prison sentence.

Our standard of review of a district court's decision to revoke probation is well settled. Once a probation violation has been established, the decision to revoke probation lies within the sound discretion of the district court. See State v. Skolaut , 286 Kan. 219, 227, 182 P.3d 1231 (2008). Judicial discretion is abused if the 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 ...; or (3) is based on an error of fact." State v. Jones , 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Wellington bears the burden to show an abuse of discretion by the district court. See State v. Rojas-Marceleno , 295 Kan. 525, 531, 285 P.3d 361 (2012).

Nevertheless, the district court's discretion to revoke probation is limited by the intermediate sanctions requirement outlined in K.S.A. 2018 Supp. 22-3716. Generally speaking, a district court is required to impose intermediate sanctions before revoking an offender's probation. See State v. Huckey , 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev. denied 302 Kan. 1015 (2015). Yet, there are exceptions that permit a district court to revoke probation without having previously imposed the statutorily required intermediate sanctions; one of those exceptions allows the district court to revoke probation if "the welfare of the offender will not be served by such sanction." K.S.A. 2018 Supp. 22-3716(c)(9)(A). The district court revoked Wellington's probation on this basis and imposed his underlying prison sentence, and we affirm that decision.

In addition, it is undisputed that Wellington was granted a dispositional departure to probation. Thus, because Wellington was originally placed on probation as a result of a dispositional departure, the district court could have properly revoked his probation and ordered the imposition of his underlying sentence on that basis-although it did not. See K.S.A. 2018 Supp. 22-3716(c)(9)(B).

Affirmed.


text:
    STATE of Kansas, Appellee, v. Glenn CRAVEN, Appellant.
    No. 119,656
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Michael Page Jr., of Olathe, for appellant.
    Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Glenn Craven appeals the denial of his motion to suppress evidence resulting in his convictions for driving under the influence (DUI), possessing a firearm under the influence of alcohol or drugs, and transporting an open container. He argues the law enforcement officer lacked reasonable suspicion to request he perform a preliminary breath test (PBT) and probable cause to arrest him. Accordingly, he claims the district court should have suppressed the evidence supporting his DUI arrest. Upon review of the record, we disagree with Craven. We affirm.

FACTS

In April 2017, Olathe Police Officer John Forcier responded to a call from an AT&T store. The store's employees advised dispatch a man who smelled of alcohol entered the store, acted upset, swore, and caused a scene. The employees observed the man leave the store and get in a silver Toyota Tacoma, and they gave police the license plate number. After Forcier arrived on the scene, he located the vehicle directly in front of the AT&T store.

Forcier observed the vehicle's engine was running and its daytime running lights were on. Forcier found Craven sitting in the driver's seat of the vehicle talking on the phone. Forcier contacted Craven and obtained his driver's license. Forcier returned to his patrol vehicle to run a record's check and to wait for a backup officer. Forcier returned to Craven and requested Craven perform field sobriety tests. Craven, upon questioning, admitted he drank one beer that day. Forcier noted Craven appeared unsteady on his feet when exiting the vehicle as well as appearing slow in walking with officers to an open area a short distance away. Craven informed Forcier he had injured his back several months before and that he had prescription medication for this condition.

Forcier began administering several field sobriety tests. He administered the horizontal-gaze nystagmus test and smelled alcohol. Next, Forcier had Craven perform the walk-and-turn test. Forcier later testified on the walk-and-turn test two or more clues of impairment indicate the person has a blood-alcohol content (BAC) over the legal limit of .08. Craven showed five clues, including loss of balance during the instruction phase, beginning the test too soon, taking an incorrect number of steps, making an improper turn, and failing to touch heel-to-toe on one of his steps. Craven next performed the one-leg-stand test. Two clues of impairment on this test indicate a BAC over the legal limit. Craven exhibited one clue of impairment: swaying while performing the test.

Next, because Craven mentioned taking pain medication, Forcier had Craven perform the "Romberg" test, which tests for drug impairment. The Romberg test does not entail validated clues for alcohol impairment and it is not a standard field sobriety test. Forcier observed Craven swaying and tremors in his eyelids, which are possible indications of drug use.

Based upon the totality of these circumstances, Forcier determined Craven was impaired and should not be driving. Forcier asked Craven to submit to a PBT, but Craven refused. At this point, Forcier arrested Craven. Craven's BAC breath test at the police station registered .144. After Craven's arrest, officers searched his vehicle and found a loaded handgun in the door pocket and an open container of beer. The State charged Craven with DUI, possession of a firearm while under the influence of alcohol or drugs, and transporting an open container.

Craven filed a motion to suppress the evidence gathered following his arrest; however, the motion is not included in the record on appeal. The district court held hearings on the motion on November 2, 2017, and January 3, 2018. Forcier testified and the State played the video from Forcier's in-car camera. The video is not included in the record on appeal. The district court found Forcier's personal observations and the results of the field sobriety tests provided reasonable suspicion to request the PBT and probable cause to arrest Craven. The district court denied the motion to suppress.

At a bench trial based on stipulated facts, the district court found Craven guilty on all counts.

ANALYSIS

On appeal, Craven argues Forcier lacked reasonable suspicion to believe he was or had been attempting to operate his vehicle under the influence of alcohol or drugs. Because the district court found otherwise in denying his motion to suppress, Craven asserts this was error.

The standard of review for a district court's decision on a motion to suppress has two parts. First, the appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. Next, the appellate court reviews the district court's ultimate legal conclusion under a de novo standard. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). Whether reasonable suspicion exists is a question of law to which the appellate court applies the same standard of review. City of Wichita v. Molitor , 301 Kan. 251, 264-65, 341 P.3d 1275 (2015). Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved. State v. Sharp , 289 Kan. 72, 88, 210 P.3d 590 (2009).

If a law enforcement officer has reasonable suspicion to believe a person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs, the officer may request the person submit to a PBT. K.S.A. 2018 Supp. 8-1012(b). Whether the officer has the statutorily required reasonable suspicion to request a PBT is determined by examining the totality of the circumstances which existed at the time of the request. The driver's performance on field sobriety tests occurring before the PBT must be included in the officer's totality of circumstances examination. Molitor , 301 Kan. at 265. In exercising the totality of circumstances test for reasonable suspicion, an appellate court should not assess each factor or piece of evidence in isolation. The court must fully integrate potential exculpatory evidence into its totality of the circumstances calculus. 301 Kan. at 265-66.

The district court denied the motion to suppress because Forcier had reasonable suspicion to request the PBT and probable cause to arrest Craven. The district court found Craven had either driven or was attempting to drive his vehicle because the engine was running, the running lights were on, and Craven was the only one in the vehicle. The district court noted AT&T employees reported Craven smelled of alcohol while in their store and they called police because they believed he was intoxicated. Additionally, the district court mentioned Craven admitted he had a beer and was "slow and unsteady." Regarding the field sobriety tests, the district court referenced the police video and Forcier's testimony, finding Craven lacked balance and he showed five of eight clues of intoxication during the walk-and-turn test. The court also found Craven showed one clue for intoxication from the one-leg-stand-Craven swayed during the test.

Craven argues the district court ignored exculpatory evidence when it denied his motion to suppress, thereby violating the rule set forth in Molitor which requires integration of both inculpatory and exculpatory evidence in the totality of the circumstances calculations. See 301 Kan. at 265-66. Craven supports this argument by stating he "submitted to three field sobriety tests, performing satisfactorily on two of the three tests." Additionally, he says the totality of the circumstances required the district court to consider his recent back surgery and no witnesses having testified to actually witnessing his unsafe operation of the vehicle. This forms the basis of Craven's argument on appeal, and it raises the question of whether the district court overlooked or gave inadequate consideration to evidence Craven believes to be exculpatory. However, when factored into a totality of the circumstances analysis, this evidence does not change the outcome of Craven's motion being denied.

Our Supreme Court recognizes field sobriety tests as providing an objective analysis of whether a driver's blood alcohol content is over the legal limit, and viewing results of these tests in conjunction with an officer's subjective observations provides the basis for a totality of the circumstances evaluation. See Molitor , 301 Kan. at 266-68. After smelling alcohol on Craven, Forcier administered three additional tests to Craven-the walk-and-turn test, one-leg-stand test, and the Romberg test. Forcier noted five out of eight clues of impairment on the walk-and-turn test which, based on his training, indicated an impairment over the legal limit. On the one-leg-stand-test, Craven exhibited one of four clues. The Romberg test is used to test for drug impairment and is not a standard field sobriety test. In applying this test, Forcier did not look for validated clues of impairment but rather applied it because Craven mentioned having a prescription for medication following recent back surgery.

Although Craven on appeal asserts he performed satisfactorily on two of three field sobriety tests, realistically, only two of the tests were for alcohol impairment. The Romberg test was not used to assess Craven's alcohol use. This leaves the walk-and-turn test and one-leg-stand test as objective assessments of his alcohol impairment level, and Forcier testified to viewing these tests in totality with one another to evaluate Craven's possible impairment. The tests themselves are not evaluated using a pass or fail standard but rather are looked at to establish validated clues of impairment. Even conceding Craven performed satisfactorily on the one-leg-stand test, he still exhibited fives clues of impairment on the walk-and-turn test, and no single test's results should be viewed in isolation. See 301 Kan. at 265-66. The record reflects both Forcier and the district court took the results of all the tests into account in their totality of the circumstances analysis as required by Molitor . See 301 Kan. at 265.

Contrary to Craven's claims, Forcier possessed sufficient information prior to the field sobriety tests indicating Craven had operated or was about to operate his vehicle while under the influence of drugs or alcohol. Employees at the AT&T store reported Craven smelled of alcohol and caused a scene. When Forcier arrived at the store to investigate, he linked the vehicle matching the employees' description in the parking lot with Craven in the driver's seat. The engine was running and the daytime running lights were on. During the initial part of their encounter, Craven told Forcier he had one beer. Viewing these prior events in conjunction with the results of the field sobriety tests results in both subjective and objective observations Craven was impaired. See 301 Kan. at 266-68.

The other two potentially exculpable factors mentioned by Craven on appeal-his recent back surgery and lack of any witness testimony of unsafe operation of his vehicle-do not change the totality of circumstances calculation. Craven's brief provides no elaboration of how or why these assertions would defeat Forcier's observations and the district court's findings.

Craven's recent back surgery and prescription for medication were taken into account by Forcier when he administered the Romberg test. The Romberg test is for drug impairment, not alcohol impairment. Forcier administered it looking for clues of drug impairment. At the point he applied the Romberg test, Forcier testified to taking into account the odor of alcohol, admission of drinking alcohol, possible use of prescription medication, five of eight clues on the walk-and-turn test and one of four clues on the one-leg-stand test. The totality of the other clues formed the basis to arrest Craven.

Craven also asserts the fact no witnesses testified to seeing him unsafely operate his vehicle. This assertion lacks relevance. Forcier only needed reasonable suspicion to believe Craven attempted to operate his vehicle while under the influence to request the PBT. See K.S.A. 2018 Supp. 8-1012(b). Forcier's observation Craven was sitting in the driver's seat in his vehicle with the engine running and daytime running lights on was sufficient to constitute attempting to operate the vehicle. A second witness would be unnecessary. Circumstantial evidence supports the fact he had been and was about to operate his vehicle. Even the gravest of crimes can be supported by circumstantial evidence. State v. Darrow , 304 Kan. 710, 716, 374 P.3d 673 (2016).

To arrest a person for driving while intoxicated, an officer must possess probable cause. Sloop v. Kansas Dept. of Revenue , 296 Kan. 13, 20, 290 P.3d 555 (2012). Probable cause means a reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. 296 Kan. at 20. To form probable cause, Forcier was not required to establish guilt beyond a reasonable doubt or even prove guilt is more probable than not. 296 Kan. at 20. It is sufficient if the information leads a reasonable officer to believe guilt is more than a possibility. 296 Kan. at 20. Based on Forcier's observations, he had both reasonable suspicion and probable cause to believe Craven was about to commit a crime by operating or attempting to operate his vehicle while intoxicated. Given the totality of the circumstances, the district court did not err in denying the motion to suppress.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Thomas Joseph FERNANDEZ, Appellant.
    No. 120,575
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019
    MEMORANDUM OPINION
   Per Curiam:

Thomas Joseph Fernandez pled no contest to unlawful possession of a controlled substance, a severity level 5 drug felony, and driving under the influence of alcohol, a class A misdemeanor. The district court using a criminal history score of C sentenced Fernandez to 18 months' probation, with mandatory drug treatment, and an underlying 23-month prison term for the possession offense and 18 months' probation with an underlying 12-month jail term for the DUI offense, to run concurrent with the possession prison term.

On appeal, Fernandez contends that the district court abused its discretion when it ordered him to serve his original 23-month prison term without first imposing a 180-day prison sanction because the circumstances surrounding his addiction outweighed any violations of probation. We granted Fernandez' motion for summary disposition under Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State joined in this request for summary disposition.

On April 26, 2017, after finding Fernandez had violated his probation, the district court revoked and reinstated Fernandez' probation, extending it for 18 months and imposed a 30-day jail sanction. On June 28, 2017, after finding he had violated his probation, the district court revoked and reinstated Fernandez' probation, extending it for 18 months and imposed a 3-day jail sanction. On January 10, 2018, after finding that Fernandez had again violated his probation, the district court again revoked and reinstated his probation, extending it for 18 months and imposed a 120-day Department of Corrections' sanction.

On November 16, 2018, the State moved to revoke Fernandez' probation, alleging he violated it by (1) failing to report; (2) failing to comply with curfew, house arrest and/or electronic monitoring; (3) failing to refrain from possessing or using illegal drugs or alcohol; (4) failing to submit to a urinalysis; and (5) failing to comply with all treatment and/or counseling programs as directed. At the hearing on November 30, 2018, Fernandez admitted to violating his probation and requested that the district court impose a 180-day prison sanction or, in the alternative, reduce his prison sentence to 12 months. The district court revoked Fernandez' probation and ordered him to serve his original 23-month prison term.

Fernandez implicitly acknowledges that a district court's decision to revoke probation rests in the sound discretion of the court. See State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial discretion is abused if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Jones , 306 Kan. 948, 957, 398 P.3d 856 (2017).

Based on our review of the record, we find no error of fact or law. Rather, we find that the district court's decision was reasonable under the circumstances presented. Because it is undisputed that graduated sanctions had already been exhausted, the district court acted well within its sound discretion in revoking Fernandez' probation and in imposing his underlying sentence. See K.S.A. 2018 Supp. 22-3716(c)(1)(E). Thus, we conclude the district court did not abuse its discretion and we affirm the district court's decision.

Affirmed.


text:
    Franklin GRAMMER Jr., Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS, Martin J. Sauers, Warden, et al., Appellees.
    No. 120,405
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019
    Shannon S. Crane, of Hutchinson, for appellant.
    Robert E. Wasinger, legal counsel, Ellsworth Correctional Facility, for appellees.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Franklin Grammer Jr. appeals the district court's dismissal of his K.S.A. 60-1501(b) petition as untimely. Because he failed to file that petition within the time specified in the relevant statute, we affirm.

Factual and procedural background

While Grammer was an inmate at Ellsworth Correctional Facility, a corrections officer confiscated a fan in his possession because it had been altered by removing every other slat. Grammer claimed that the alterations had been done years earlier, were solely for the purpose of improving the airflow, and did not pose a safety risk.

After the officers confiscated the fan, Grammer filed a grievance with the Unit Team in January 2017. The Unit Team denied that grievance. Grammer appealed that decision to Warden Martin J. Sauers, who agreed that the fan should be removed because it had been altered from its original condition. Grammer appealed the Warden's decision to the Secretary of Corrections designee Douglas Burris. Burris responded on February 21, 2017, that the staff's response was appropriate.

On May 3, 2017, Grammer filed a pro se petition pursuant to K.S.A. 60-1501, alleging that Kansas Department of Corrections (KDOC) had violated his constitutional rights by seizing the fan. To state a claim for relief under that statute, a petition must allege "shocking and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson v. State , 289 Kan. 642, 648, 215 P.3d 575 (2009). Grammer argued that KDOC's justification for seizing his property-a regulation prohibiting the alteration of personal property-interfered with his inherent ownership rights to do as he wished with his property. Grammer also claimed that the "final disposition" of his case occurred on March 3, 2017.

The district court issued a writ in May 2017, ordering KDOC to respond to Grammer's petition within 30 days. In September 2017, Grammer moved for default judgment because KDOC had not responded. The district court then held a status hearing at which KDOC stated it had never received a summons from Grammer's counsel after the district court's May 2017 order. The district court then denied Grammer's motion for default judgment, denied KDOC's request for service by summons, and ordered KDOC to file an answer within 30 days.

Within 30 days, KDOC moved to dismiss Grammer's petition as untimely. According to KDOC, Grammer had exhausted his administrative remedies on February 21, 2017, when the Secretary of Corrections' designee responded to his appeal; that was the final action which triggered the 30-day period in which Grammer could file his 60-1501 petition. Grammer then waited more than two months to file his K.S.A. 60-1501 petition, well outside the 30-day time limit set forth in that statute. The district court agreed. It granted KDOC's motion and dismissed Grammer's petition as untimely. Grammer appeals.

Did the district court err in dismissing Grammer's K.S.A. 60-1501 petition?

We review a district court's decision on a K.S.A. 60-1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are subject to de novo review. Rice v. State , 278 Kan. 309, 320, 95 P.3d 994 (2004) ; Hooks v. State , 51 Kan. App. 2d 527, 530, 349 P.3d 476 (2015).

Our law requires an inmate to exhaust any administrative remedies established by the Secretary of Corrections before filing any civil action against the State, any political subdivision of the state, or a public official. K.S.A. 75-52,138. See Sperry v. McKune , 305 Kan. 469, 482-83, 384 P.3d 1003 (2016). The inmate must also establish within his or her original petition that he or she exhausted available administrative remedies. K.S.A. 75-52,138. Grammer exhausted his administrative remedies, then filed a civil petition against the KDOC.

The governing statute required Grammer to file his petition within 30 days of the final action in his administrative appeal:

"[A]n inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies." K.S.A. 60-1501(b).

The record shows the following timeline:

• Grammer filed a grievance on January 30, 2017, after correctional officers at Ellsworth Correctional Facility confiscated his fan.
• Disagreeing with the correctional officers' decision, Grammer directed the grievance to Warden Sauers on February 7. Sauers responded in a letter six days later agreeing with the decision to remove the fan.
• Grammer submitted another appeal on February 16 to the Secretary of Corrections designee Douglas Burris. Burris responded on February 21 that the previous decisions were "appropriate."
• Grammer filed his current petition on May 3, claiming that "final disposition" occurred on March 3.

The record does not reflect what, if anything, occurred on March 3 that Grammer asserts was the final action, and Grammer does not say. But even assuming that the final action occurred on March 3, as Grammer alleges, instead of on February 21, as KDOC alleges, more than 30 days passed between March 3 and May 3, the date Grammer filed his 60-1501 petition. The district court correctly found that Grammer filed his petition out of time. See Corter v. Cline , 42 Kan. App. 2d 721, 723, 217 P.3d 991 (2009) (holding that the trial court did not err in finding a petition to be untimely). Grammer appears to concede as much.

Grammer fails to support his argument that an equitable exception exists to extend the 30-day time limit.

Grammer primarily contends that this court should apply an equitable exception to the 30-day filing period.

We have occasionally done so. Appellate courts in Kansas view the 30-day limit in K.S.A. 60-1501(b) as a statute of limitations for habeas corpus petitions. This means that the 30-day limit does not impose a jurisdictional bar, may be waived, and is subject to equitable exceptions. See Battrick v. State , 267 Kan. 389, 401, 985 P.2d 707 (1999) (characterizing 30-day period in K.S.A. 60-1501 as statute of limitations); Knittel v. Kansas Prisoner Review Board , No. 111, 552, 2014 WL 6777450, at *3 (Kan. App. 2014) (unpublished opinion) (omission of jurisdictional language in K.S.A. 60-1501 [b] supports conclusion that 30-day filing period is a statute of limitations). This court previously applied an equitable exception to the 30-day filing period where corrections officers denied an inmate's access to legal materials. See Dudley v. Snyder , No. 111,806, 2015 WL 1514243, at *3 (Kan. App. 2015) (unpublished opinion).

Grammer appears to claim that the 30-day limit should be extended based on further attempts to exhaust administrative remedies. But he supports that claim with only the following general statement:

"Since the Petition was dismissed without a hearing, it is unknown why the Petition was filed outside the 30 day window. It is unknown if Grammer attempted further relief at the administrative level that may have tolled the 30 day limit or whether he was prevented in some manner in filing the Petition."

This statement is not enough to warrant an equitable exception in this case. Grammer's claims are speculative and are not based on facts of record. He does not allege, let alone show, that further administrative remedies were available and that he took them. Nor does he show that he was somehow prevented from filing his 60-1501 petition earlier.

Based on the record, Grammer exhausted his administrative remedies on February 21, when the Secretary of Corrections designee affirmed the denial of his grievance or soon thereafter when he learned of that decision. That was the final action, triggering the 30-day period in which Grammer had to file his petition. Because Grammer did not file his 60-1501 petition within 30 days of that date, the district court properly dismissed it as untimely.

Affirmed.


text:
    STATE of Kansas, Appellee, v. David M. HORN, Appellant.
    No. 118,930
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Nicholas David and Michelle David, of The David Law Office LLC, of Lawrence, for appellant.
    Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Buser and Atcheson, JJ.
    MEMORANDUM OPINION
   Per Curiam:

We remanded this case to the Douglas County District Court for the limited purpose of determining whether statements Defendant David M. Horn made to police officers were voluntary or the product of an impermissibly coercive interrogation. The district court held an evidentiary hearing and concluded the statements were voluntary. Horn has appealed that ruling. We find no error and affirm.

A jury convicted Horn of domestic battery based on an incident involving him and his wife at their apartment. A Lawrence police officer questioned Horn at the apartment, and the State sought to introduce his statements during the trial. Horn objected and requested what is commonly known as a Jackson v. Denno hearing to test the voluntariness of those statements. See Jackson v. Denno , 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) ; State v. Betancourt , 301 Kan. 282, 289, 342 P.3d 916 (2015) (noting that "at a Jackson v. Denno hearing, the issue before the court is whether defendant's statement or confession was voluntary"). The district court declined to hold a hearing. Horn appealed his conviction, arguing the district court's failure deprived him of a fair trial.

We conditionally affirmed his conviction and remanded to the district court specifically to conduct a Jackson v. Denno hearing. We recognized that if Horn's statements to the police officers were, in fact, voluntary, they were properly admitted during the trial, and he was not prejudiced. Conversely, if the statements were involuntary and should have been excluded as evidence, then Horn did not receive a fair trial given the highly conflicting accounts of what happened between him and his wife. State v. Horn , No. 114,078, 2016 WL 7494377, at *6 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1317 (2017) (Horn I ).

In conformity with the remand order, the district court held a Jackson v. Denno hearing on December 5, 2017, at which Horn and Lawrence Police Officer Jonathan Gardner testified. The district court filed a two-page memorandum decision on December 21 outlining its factual findings and concluding Horn's statements were voluntary. Based on that determination, Horn received a fair trial, and his conviction remained in place. Horn has appealed.

In reviewing the district court's factual findings and legal conclusions, we apply a well-known bifurcated standard. We ask whether substantial competent evidence supports the factual findings, giving due deference to the district court's reconciliation of conflicting evidence and its related credibility determinations. We then consider whether those findings support the legal conclusions, a call we make without deferring to the district court's ultimate ruling. State v. Gilliland , 294 Kan. 519, Syl. ¶ 1, 276 P.3d 165 (2012) ; State v. Fernandez-Torres , 50 Kan. App. 2d 1069, 1076, 337 P.3d 691 (2014).

Ultimately, the voluntariness of a person's statements to law enforcement officers turns on the totality of the circumstances bearing on whether those statements are the product of a free and independent will. Fernandez-Torres , 50 Kan. App. 2d at 1075. The Kansas appellate courts have developed a set of factors for assessing voluntariness. As we outlined in Horn I :

"Among the factors the district court may consider are: '(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.' State v. Gilliland , 294 Kan. 519, Syl. ¶ 3, 276 P.3d 165 (2012) ; see also Fernandez-Torres , 50 Kan. App. 2d at 1075. A government agent may induce an involuntary statement through improper threats of harm, promises of benefit, a combination of the two, or other undue influence over the suspect. Hutto v. Ross , 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976) ; State v. Brown , 286 Kan. 170, 174, 182 P.3d 1205 (2008). The State has to prove the voluntariness of a defendant's statements by a preponderance of the evidence. State v. Randolph , 297 Kan. 320, 326, 301 P.3d 300 (2013)." 2016 WL 7494377, at *2.

The district court acknowledged those guiding principles in its memorandum decision and applied them in arriving at its conclusion that Horn's statements were voluntary.

The hearing transcript reflects that Horn and Officer Gardner gave somewhat differing versions of their interaction in the apartment. The district court's factual findings in the memorandum decision essentially track Officer Gardner's account and, thus, necessarily reflect an implicit credibility determination against Horn. See State v. Walker , No. 117,909, 2018 WL 3077089, at *2 (Kan. App. 2018) (unpublished opinion) (district court's comments in bench ruling amount to implicit credibility determination) rev. denied 309 Kan. ---- (December 31, 2018); State v. Cheatham , No. 106,413, 2012 WL 4678522, at *2 (Kan. App. 2012) (unpublished opinion) (appellate court infers credibility determination based on district court's factual findings comporting with one witness' account of relevant events rather than conflicting account from second witness). We review the evidentiary record in that light.

The district court found that three Lawrence police officers came to the apartment in response to a 911 call from Horn's wife, who said she had locked herself in the bathroom because Horn had hit her. The district court further found that Horn's wife had given the officers permission to enter the apartment. They did so.

The officers extracted Horn's wife from the bathroom, and one of them talked to her about what had happened. Officer Gardner questioned Horn about his version of what led up to the 911 call. The questioning took place in the master bedroom of the apartment. Horn was in his underwear and sat on the side of the bed. After the officers arrested Horn, they allowed him to get dressed before taking him to the law enforcement center.

The district court found that Horn first encountered the police officers in a hallway in the apartment after they had come in and that the officers asked him to go into the bedroom. That finding does not match up with the testimony of either Horn or Officer Gardner at the Jackson v. Denno hearing. According to Gardner, Horn remained in the bedroom. We don't see that particular finding to be significant to the voluntariness inquiry. Everybody agrees Horn was questioned in the bedroom.

The district court found that although Officer Gardner stood between Horn and the bedroom door, Horn never asked to leave or was in any way physically restrained during the questioning. The district court characterized the questioning as "conversational" in tone. The entire investigation lasted between 45 and 50 minutes. The officers made no threats of harm or promises of benefits to Horn to induce him to answer the questions. The district court found that Horn was "an adult in his thirties" with "educational accomplishments reflect[ing] intelligence." Consistent with the specific factors the appellate courts have recognized, the district court noted that Horn is fluent in English. The district court also noted the absence of any evidence the officers exerted undue influence over Horn.

Apart from the district court's description of the initial encounter taking place in the hallway, all of its findings are supported in Gardner's testimony.

In its memorandum decision, the district court specifically discounted Horn's testimony that he was drunk when the officers arrived at the apartment and asked him questions. The district court gave "little weight" to Horn's assertion and found that he "understood the questions" he was asked and offered "appropriate" responses. So even if Horn had been drinking, which the district court doubted, his insobriety did not render his statements less than voluntary.

The district court concluded that the questioning of Horn was noncustodial, meaning a reasonable person would have concluded he or she was free to terminate the interrogation or to leave, and Horn's statements were voluntary. The district court's findings support the legal conclusion that Horn's will was not overborne and his statements were voluntary. We agree with that conclusion and affirm the district court's ruling following the Jackson v. Denno hearing.

In his brief on appeal, Horn has raised for the first time a claim that the district court violated his right to a public trial protected in the Sixth Amendment to the United States Constitution when it conducted part of the jury selection in private. Only the prosecutor, Horn and his lawyer, the district court, and a court reporter were present as individual potential jurors were asked about their exposure to and attitudes about domestic violence. The examination was done in a way that precluded the attendance of anyone else. The record on appeal contains no objection from Horn's trial lawyer and is consistent with acquiescence. Horn did not assert denial of a public trial as a point in his appeal in Horn I -a procedural marker an issue has been abandoned. See State v. Littlejohn , 298 Kan. 632, 655-56, 316 P.3d 136 (2014) ("issue not briefed ... deemed waived and abandoned").

We decline to consider the public trial issue for the first time now. It could have been raised in Horn I and wasn't. In Horn I , this court conditionally affirmed the conviction and remanded for the singular purpose of allowing the district court to conduct a Jackson v. Denno hearing. That's all the district court was supposed to do. And that's all Horn could appeal from-the mandate on remand didn't reopen the case for the assertion of new issues unrelated to the voluntariness of his statements and the district court's handling of the Jackson v. Denno hearing.

The mandate rule strictly limits the district court to considering only those issues and performing only those functions specifically identified in an appellate court's remand order. In re Care & Treatment of Emerson , 306 Kan. 30, 35, 392 P.3d 82 (2017) ; State v. Kleypas , 305 Kan. 224, 296-97, 382 P.3d 373 (2016). The rule has been codified in K.S.A. 60-2106(c) ("Such mandate ... shall be controlling in the conduct of any further proceedings necessary in the district court."). Although the rule rests on prudential considerations, it should be rigorously enforced to insure the orderly and timely disposition of cases and to avoid serial appeals of issues that could have and should have been raised in an initial appeal. The rule is considered nearly ironclad. See Kleypas , 305 Kan. at 297 (holding district court obligated to comply with mandate and reserving question whether district court or parties may request appellate court to modify mandate to alter proceedings required on remand). We are unpersuaded that we should expand this appeal beyond review of the matters identified in the mandate for consideration on remand.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Daniel Paul GLAZE, Appellant.
    No. 120,469
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Daniel Paul Glaze appeals the district court's decision revoking his probation and ordering him to serve his original sentence. We granted Glaze's motion for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State has responded and requests that the district court's judgment be affirmed.

On December 23, 2016, Glaze pled no contest to one count of unlawful possession of marijuana, a felony. On February 24, 2017, the district court sentenced Glaze to 34 months' imprisonment but granted a dispositional departure to probation for 18 months to be supervised by community corrections.

At a hearing on November 9, 2018, Glaze admitted to violating the conditions of his probation on many grounds, including the use of illegal drugs and being unsuccessfully discharged from inpatient treatment. Glaze asked for reinstatement to probation and further drug treatment, but the district court revoked his probation and ordered him to serve his original sentence, finding that probation had been granted as the result of a dispositional departure. Glaze timely appealed.

On appeal, Glaze claims the district court "abused its discretion by ordering the sentence served when sanctions remained a viable alternative and [he] demonstrated a need for additional drug treatment." But he concedes that the district court did not have to consider an intermediate sanction in this instance because his probation was originally granted as the result of a dispositional departure.

The procedure for revoking a defendant's probation is governed by K.S.A. 2018 Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions of probation, the decision to revoke probation rests in the district court's sound discretion. State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion occurs when judicial 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). The party asserting the district court abused its discretion bears the burden of showing such an abuse of discretion. State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012). A district court abuses its discretion by committing an error of law in the application of K.S.A. 2018 Supp. 22-3716 when revoking a defendant's probation. See State v. Still , No. 112,928, 2015 WL 4588297, at *1 (Kan. App. 2015) (unpublished opinion).

Here, the district court showed leniency to Glaze by granting a dispositional departure to probation. The record reflects that Glaze had a prior probation violation for which he received a three-day jail sanction. As Glaze concedes, the district court did not have to consider another intermediate sanction in this instance because his probation was originally granted as the result of a dispositional departure. K.S.A. 2018 Supp. 22-3716(c)(9)(B). Glaze may have showed a need for additional drug treatment, but he failed to take advantage of the chances he was given. The district court's decision to revoke Glaze's probation was not arbitrary, fanciful, or unreasonable, and it was not based on an error of fact or law. Glaze has failed to show that the district court abused its discretion by revoking his probation and ordering him to serve his original prison sentence.

Finally, Glaze asserts a constitutional claim that the district court "erred in imposing a greater penalty [based on his criminal history score] that was not charged in the complaint and proved to a jury beyond a reasonable doubt." But Glaze did not timely appeal his sentence imposed on February 24, 2017. See K.S.A. 2018 Supp. 22-3608(c) ; State v. Ineklaar , 38 Kan. App. 2d 312, 317-18, 164 P.3d 844 (2007) (holding that defendant's notice of appeal was timely only as to his probation revocation and not as to his original sentence), rev. denied 286 Kan. 1183 (2008). And a claim that a sentence violates a constitutional provision does not make the sentence illegal within the meaning of K.S.A. 2018 Supp. 22-3504, allowing it to be corrected at any time. State v. Warrior , 303 Kan. 1008, 1010, 368 P.3d 1111 (2016). Because Glaze did not timely appeal his sentence, this court lacks jurisdiction to address his sentencing issue. But even if we had jurisdiction to address the issue, we note that our Supreme Court has resolved this issue contrary to Glaze's position in State v. Ivory , 273 Kan. 44, 46-47, 41 P.3d 781 (2002).

Affirmed in part and dismissed in part.