text:
    STATE of Kansas, Appellee, v. Michael ROSS, Appellant.
    No. 117,850
    Supreme Court of Kansas.
    Opinion filed July 19, 2019.
    Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Michael Ross, appellant, was on a supplemental brief pro se.
    Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
   The opinion of the court was delivered by Rosen, J.:

Michael Ross challenges his convictions for first-degree felony murder, second-degree murder, and felony abuse of a child. Finding any error to be harmless, we affirm.

FACTS

On the morning of November 9, 2015, A.S. left two of her children-17-month-old G.H. and 4-year-old S.T.-in the care of her boyfriend, Ross, while she traveled to the hospital to work her shift as a certified nursing assistant. At that time, G.H. was uninjured and was acting normally, although she did have a bruise on her right cheek. Other than Ross, there were no adults in the residence at this time. Not long after her shift at the hospital began, A.S. received a phone call from Ross, who told her that G.H. had fallen and was not responding.

A.S. left work promptly after receiving the call and returned home. When A.S. arrived at the residence, G.H. was lying down on a bed. She was breathing, but she was nonresponsive. G.H. had bruising on her face and a bump on her head that had not been present before A.S. left for work. While A.S. was on the phone with 911, G.H. began having seizures.

Paramedics responded to the scene a short while later, where they found G.H. nonresponsive. The paramedics observed various injuries, including a large hematoma to G.H.'s forehead, a swollen upper lip, bite marks on different places of G.H.'s body, and various circular and semicircular bruises on her body that were in different stages of healing. When they moved G.H. to the ambulance, the paramedics assessed her under the Glasgow Coma Scale at a score of 4 out of a possible 15, with 15 indicating alertness. G.H.'s score decreased to a 3-the lowest possible score-during the ride to the hospital.

Eric Glendinning, M.D., provided emergency care for G.H. when she arrived at the hospital around 1:30 p.m. When she arrived, G.H. was put under anesthesia and intubated. Glendinning noted bruising on G.H.'s face and a swollen lip, along with bruising on her abdomen. A CT scan revealed a subdural hematoma and a liver laceration. Because these symptoms suggested child abuse, Glendinning consulted with a pediatric intensivist, Elizabeth Heflin, M.D. Heflin observed that G.H. had a subdural hemorrhage covering half of her brain and bilateral retinal hemorrhages in the back of her eyes, as well as several bruises across her body that were indicative of multiple impacts and what appeared to be a bite mark. Further analysis revealed that G.H.'s intracranial pressure was so high that she could not have been receiving adequate blood flow to her brain.

G.H. was declared brain dead on November 12, 2015. Following G.H.'s death, forensic pathologist Timothy Gorrill, M.D., performed an autopsy. Based on the constellation of injuries, Gorrill concluded that G.H.'s manner of death was homicide.

Wichita Police Department detectives interviewed Ross prior to G.H.'s death and subsequently took Ross into custody. Following G.H.'s death, Ross was eventually charged with premeditated first-degree murder and, in the alternative, felony murder, along with abuse of a child.

From the outset of the case to the date of trial, Ross offered a number of different explanations for G.H.'s injuries. Ross told the paramedics that G.H. had fallen from a standing position and that she had possibly fallen into a doorway. He told Wichita Police Department Detective Ryan Schomaker that he had not seen the accident but that S.T. told him G.H. had fallen. Ross later wrote A.S. a series of letters from jail that contained various descriptions of how G.H. became injured, including that G.H. fell while standing on a toilet; that she slipped on water on the bathroom floor; that she was pushed off a counter by S.T. and hit her head on a white iron chair; and that she was hit by a falling television. Ross also made multiple calls to his own mother featuring different accounts. Additionally, Ross' one-time jail cellmate Demarco Rippatoe came forward with what he alleged to be four different versions of the day's events, as relayed to him by Ross. Critically, in one of the versions Rippatoe recounted, Ross admitted to "slamm[ing]" an old, 1990s-model 32- to 34-inch television-the type "with the big back"-weighing between 65 and 70 pounds onto G.H.

At trial, Ross testified that G.H. fell off of the counter in the kitchen and hit her head on an iron chair shortly after A.S. left for work, after which G.H. "seemed fine." After this, Ross said that he lay down to sleep because he was exhausted from "coming down off crystal meth" after having been awake for "[l]ike two days and a half." Ross then claimed to have woken up after hearing S.T. and G.H. "play[ing] in the sink." Upon investigating, he found G.H. "between the tub and the toilet" and S.T. "[s]tanding on the toilet." He testified that G.H. fell again while walking to him "because there was a lot of water on the floor." Ross then went to sleep again, leaving G.H. to play with S.T. A little while later, S.T. woke Ross because "the TV's on top of [G.H.]." Again investigating, Ross found the television lying on top of G.H. "[f]rom her head to her abdomen." Ross claimed that G.H. was unconscious and was having a seizure but was also "rubbing her left side where her ribs" were located. At this point, Ross "panick[ed]" and "gave [G.H.] CPR."

Both of G.H.'s treating doctors testified at trial. Glendinning estimated that the injury that caused G.H.'s brain bleeding must have occurred within a few hours before she arrived at the hospital and must have had an acute, rather than gradual, cause. As to G.H.'s lacerated liver, Glendinning opined that it would take "significant, significant force" to cause such an injury-force comparable to "car accidents at highway speeds." Glendinning further testified that a falling 65- to 70-pound television might have caused such a liver injury if it landed on G.H.'s abdomen. Heflin testified that the kind of hemorrhage G.H. suffered-a subdural hemorrhage-usually occurs "when the skull goes one way, the brain goes the other way and it rips them apart, rips those veins apart." Heflin said that with subdural hemorrhage, "you don't get a lucid interval" between injury and presentation of symptoms. Heflin opined that a falling television could not have caused subdural hemorrhages and retinal hemorrhages. Heflin testified that retinal hemorrhages "are usually caused by some kind of violent shaking event where the head is shaken and goes in multiple directions." Heflin opined that a child of S.T.'s size could not have been the source of G.H.'s injuries, nor could "[t]he routine bumps and bruises that most toddlers get as they run into" furniture or fall onto the floor. In Heflin's opinion, G.H.'s injuries were inflicted, rather than accidental in origin.

The State focused its case on the severity of G.H.'s injuries and the inconsistency of Ross' proffered explanations for those injuries. Among other things, the State presented the recorded jail calls between Ross and his mother. Rippatoe also testified regarding the various accounts Ross allegedly gave him of the events of November 9, 2015. Notably, during closing arguments, the State told the jury it "must find [Ross] guilty" if it did not believe his testimony.

Although Ross' counsel initially wanted no lesser included offense instructions, the district court sua sponte decided to give intentional second-degree murder as a lesser included offense to premeditated first-degree murder. As a result, Ross' counsel also sought an unintentional but reckless second-degree murder instruction. The district court rejected this request. In closing, Ross' trial counsel argued that Ross had simply been, at most, negligent and that G.H. had been caught in a "perfect storm" of accidental injuries that culminated in her death.

The jury convicted Ross of both felony murder and second-degree murder as a lesser included offense of premeditated murder, along with abuse of a child. The district court sentenced Ross to life in prison with no chance of parole for 25 years for the felony-murder conviction and 55 months in prison for the abuse of a child conviction, to run consecutive.

Ross filed a timely appeal.

ANALYSIS

Ross' counsel raises four issues for this court's consideration. Ross has raised an additional two issues in a pro se brief. We find that none of these issues warrant reversal of Ross' convictions.

Prosecutorial Error

Ross first claims that the State committed prosecutorial error when, during its rebuttal closing argument, one of the prosecutors stated:

"Did you really believe the defendant's testimony? Ask yourself, is an unconscious baby going to be able to hold her ribs? What did you believe of his testimony? Because if you didn't believe it, you must find him guilty ." (Emphasis added.)

Ross argues this was prosecutorial error that prejudiced his right to a fair trial because this statement was legally incorrect and shifted the burden to Ross to prove his own innocence.

This court reviews a claim of prosecutorial error under a two-step analysis:

"[T]he appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman . In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or 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.' " State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016) (quoting State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011] ).

In determining whether a particular statement falls outside of the wide latitude given to prosecutors, the court considers the context in which the statement was made, rather than analyzing the statement in isolation. State v. Thomas , 307 Kan. 733, 744, 415 P.3d 430 (2018). A prosecutor's misstatement of law constitutes prosecutorial error.

State v. Davis , 306 Kan. 400, 413, 394 P.3d 817 (2017).

Every criminal defendant has a constitutional right to the presumption of innocence. Ward , 292 Kan. at 570, 256 P.3d 801. Consequently, a jury may find a defendant guilty only if the State proves the defendant's guilt; the defendant is under no obligation to disprove the State's charge. K.S.A. 2018 Supp. 21-5108 (burden to prove guilt is on State). The complained-of sentence here-"Because if you didn't believe [Ross' testimony], you must find him guilty"-conflicts with these principles and inaccurately represents the law. As a result, it was error.

But our analysis does not end here. We must evaluate whether Ross was prejudiced by this erroneous statement. Ross avers that this statement prejudiced his right to a fair trial because it effectively relieved the State of its burden to prove guilt. Although we have concluded that the literal wording of the statement conveyed such a message, the surrounding context of the prosecutor's comments makes clear that it did not have this effect.

The prosecutor made this comment after listing much of its evidence against Ross-including the fact that he was the only adult with G.H. when she was injured, the medical testimony about G.H.'s injuries, and the doctors' opinions that those injuries were not accidental. She then informed the jury that if it did not believe Ross' testimony, it had to find him guilty. She followed this with a description of the alternative explanations Ross gave for G.H.'s injuries and an argument regarding the implausibility of those explanations. Within this context, the prosecutor's statement is much more innocuous. The prosecutor laid out the evidence it thought proved Ross' guilt and then pointed out Ross' failure to poke any holes in that evidence. Understood in this light, the prosecutor's statement did not instruct the jury to find Ross guilty if he failed to prove his innocence; it instructed the jury to find him guilty if it found the State's evidence compelling and Ross' rebuttal of that evidence unbelievable. A later statement from the prosecutor confirms this position:

"Think about that in this context. The evidence is overwhelming of the defendant's guilt, overwhelming. But he wants you to think it's just these freak accidents, all caused by a four-year-old who happened to be there at every single accident in less than two hours, but the defendant wasn't there for any of it, didn't do any of it. That's what he wants you to believe."

The prosecutor's comment did not inform the jury that Ross had a burden to prove innocence. It stressed the State's position that Ross' testimony had not successfully discredited the State's evidence. A prosecutor does not shift the burden of proof by highlighting the implausibility of a defendant's account. See State v. Williams , 299 Kan. 911, 940, 329 P.3d 400 (2014). Because the prosecutor's misstatement did not effectively shift the burden of proof, there was no reasonable possibility that the error contributed to the verdict, and Ross suffered no prejudice. This was not reversible error.

Absence of a Jury Instruction on Reckless Second-Degree Murder

Ross next argues that the district court violated his statutory right to lesser included offense instructions when it did not offer an instruction on unintentional but reckless second-degree murder as a lesser included offense of premeditated murder. Appellate courts perform a four-step review of challenges to jury instructions:

"(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in Ward [, 292 Kan. at 565, 256 P.3d 801 ]." State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012).

The first element of this analysis ultimately affects the last one "in that whether a party has preserved an issue for review will have an impact on the standard by which we determine whether an error is reversible." State v. Barber , 302 Kan. 367, 377, 353 P.3d 1108 (2015). Because Ross' trial counsel requested the instruction, any error here is harmless only if "there is no reasonable probability that the error will or did affect the outcome of the trial." Ward , 292 Kan. at 565, 256 P.3d 801.

The parties agree that unintentional but reckless second-degree murder under K.S.A. 2018 Supp. 21-5403(a)(2) is a lesser included offense of premeditated first-degree murder and was, therefore, legally appropriate. They dispute whether such an instruction was factually appropriate. On this point, Ross relies almost entirely on the testimony of his former cellmate Rippatoe, who testified as a State witness. Ross argues that, if the jury believed Rippatoe's account, it could have found that Ross "slammed" the television onto the 17-month-old G.H. without the intent to kill her, but with the intent to cover up his other physical abuse by making it appear as though the falling television had caused G.H.'s injuries.

Whether this instruction was factually appropriate is immaterial, because we have little difficulty concluding that any error in failing to offer the instruction was harmless. We do not believe the jury could have reasonably viewed the act Rippatoe described-"slamm[ing]" an old style, 32- to 34-inch, 65- to 70-pound television on top of a 17-month-old child-as anything other than an intentional act calculated to bring about death. See State v. Cheffen , 297 Kan. 689, 704, 303 P.3d 1261 (2013) ; State v. Barnes , 293 Kan. 240, 264, 262 P.3d 297 (2011) (quoting State v. Salcido-Corral , 262 Kan. 392, 398, 940 P.2d 11 [1997] ) (recognizing that a fact-finder may infer intent from " 'acts, circumstances, and inferences reasonably deducible therefrom' "). This is particularly true given Rippatoe's description of Ross' conduct after "slamm[ing]" the TV down on G.H., i.e., watching as G.H.'s sister tried to lift the TV off of G.H. before "finally" doing it himself. The jury also heard testimony about the degree of harm such an object could cause to a young child and medical testimony that even a falling TV "would not have caused the cerebral edema, subdural hemorrhages, and the retinal hemorrhages that this child had." The evidence regarding the degree of harm G.H. suffered was overwhelming. Based on this evidence, there is no reasonable probability that the jury could have inferred that the killing of G.H. was done unintentionally but recklessly. Any error in failing to offer a lessor included offense instruction on unintentional but reckless second-degree murder was harmless.

Admission of Ross' Jail Calls

Ross next challenges the district court's decision to admit two recorded jail calls between himself and his mother into evidence. Ross' trial counsel raised this objection under K.S.A. 60-445, thus preserving it for appellate review.

A district court may exclude evidence if it determines that the evidence's probative value is "substantially outweighed" by its prejudicial effect. K.S.A. 60-445 ; see also State v. Huddleston , 298 Kan. 941, 961, 318 P.3d 140 (2014). That said, "Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly. [Citation omitted.]" State v. Seacat , 303 Kan. 622, 640, 366 P.3d 208 (2016). "On appeal, this determination is reviewed under an abuse of discretion standard, and the burden of proof is on the party alleging that the discretion was abused. [Citation omitted.]" Huddleston , 298 Kan. at 962, 318 P.3d 140. As this court has repeatedly held:

" '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. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019) (quoting Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 ).

Ross acknowledges that the two calls were relevant to the events surrounding G.H.'s death but claims they were not probative because they merely reiterated the various other versions of events Ross gave to others. He also claims the admission of these two calls unfairly prejudiced him because they suggested to the jury that Ross' own mother did not believe his version of events, thereby implying that the jury, likewise, should not believe him. The State counters by emphasizing the importance of Ross' various, constantly evolving explanations to the State's theory of the case, i.e., that Ross did serious violence to G.H. and then tried to pass her injuries off as the product of one or more accidents.

We see no abuse of discretion on the district court's part. The differences between the explanations offered by Ross in the first call and the second call were helpful pieces of evidence. In the first call, Ross claims that S.T. told him that G.H. fell and hit her head on a door, although he emphasized that he was not in the room at the time. In the second call, Ross' explanation included a more involved explanation: he claimed that G.H. and S.T. were alone in the bathroom, and he heard G.H. fall onto the toilet. Ross claimed to have then entered the bathroom and seen G.H. crying; G.H. then got up, was "fine," and started walking over to him, but then slipped and fell. At this point, Ross claimed that G.H. started "heaving," so Ross initiated CPR. Nevertheless, Ross told his mother, G.H. went into shock and was "holding her ribs and everything."

Given the State's theory that Ross' explanations grew more elaborate as the true severity of G.H.'s injuries became apparent, the differences in Ross' stories between the two calls carried significant probative value. This evidence was not cumulative; even if Ross gave similar versions-albeit with varying details-to other individuals, as Ross claims, the call recordings provide useful meta-information to a fact-finder that raw testimony alone could never effectively convey. Among other things, the calls reveal Ross' tone, his vagueness, and the shifting nature of his accounts of the morning's events-all of which fit into the State's greater theory of the case, as emphasized in its closing argument:

"Go back and listen to State's 98 and 99. It's probably difficult to hear what [Ross] was saying in those calls .... Listen to the words. Because the mom yelling kind of overshadowed everything else, but listen for his words. Listen for the changes in his statements over and over and over and over.
"If it's an accident, it doesn't change. It's the same accident all the time. Maybe it is freakish, but it's the same thing. The reason that it changes over and over and over is because it was never an accident. He had to try out different versions of his statement to different people. When he found out what the different injuries were showing up to be, it evolved. It went from don't know what happened, [G.H.]-[S.T.] tells me she ran into a door. That's story number one to the police: Don't know what happened, [S.T.] just tells me she ran into a door, we'll go with that at first.
"Then he starts to find out just how badly she's hurt and now the mechanisms of injury of what really happened start to show up over time. Listen to those tapes. Look at all of the evidence. Is it intentional? He was the only adult there. He was the only one there with the force necessary to cause the mechanisms of injury that hurt this baby."

We agree that the two calls were likely prejudicial to Ross. The emotion in Ross' mother's voice and the frequently accusatorial nature of her responses to him are undeniable. But prejudice alone is not enough to warrant the application of the "extraordinary remedy" to exclude evidence. See Seacat , 303 Kan. at 640, 366 P.3d 208. Instead, such a remedy is only appropriate when the probative value of the evidence is "substantially outweighed by unfair prejudice." State v. Mitchell , 285 Kan. 1070, 1074, 179 P.3d 394 (2008). That was not the case here. The probative value of the calls far outweighed the resulting prejudice. Consequently, the district court did not err in admitting the calls.

Ross' Pro Se Arguments

In a separate pro se brief, Ross raises a pair of additional issues. He first claims that the jury's verdict on second-degree murder "operates as a de facto acquittal" on the charge of first-degree felony murder. He also argues that K.S.A. 2018 Supp. 21-5109(b)(1) infringes on his right to present a "complete defense" to the State's charges, an error he contends is structural. Specifically, Ross claims that the Legislature, by providing that there are no lesser degrees of felony murder, unconstitutionally precluded him from presenting a " 'guilt-based' " defense to the charge of felony murder.

It does not appear that Ross raised either argument before the district court. As a general rule, an issue not raised before a district court cannot be considered for the first time on appeal. Trotter v. State , 288 Kan. 112, 124, 200 P.3d 1236 (2009). Ross does not acknowledge his failure to preserve these issues for review and provides no explanation for why this court should consider them, as required by Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34). In light of Ross' failure to explain why we should consider his newly raised arguments, they are insufficiently preserved for appellate review.

Cumulative Error

Finally, Ross argues that the cumulative effect of the errors in this case deprived him of a fair trial.

Although errors may be individually harmless, their collective effect " 'may be so great as to require reversal of a defendant's conviction.' " State v. Anderson , 308 Kan. 1251, 1266, 427 P.3d 847 (2018) (quoting State v. Carter , 305 Kan. 139, 166, 380 P.3d 189 [2016] ). When analyzing a claim of cumulative error, we use a de novo standard of review to determine whether " 'the totality of circumstances substantially prejudiced a defendant and denied the defendant a fair trial based on cumulative error.' " Anderson , 308 Kan. at 1266, 427 P.3d 847 (quoting State v. Brown , 298 Kan. 1040, 1056, 318 P. 3d 1005 [2014] ). Cumulative errors are not prejudicial when " 'the evidence against the defendant is overwhelming.' " Anderson , 308 Kan. at 1267, 427 P.3d 847 (quoting Carter , 305 Kan. at 166, 380 P.3d 189 ).

In our review, we have identified one error based on the prosecutor's misstatement of law and have assumed one error based on the district court's failure to issue a lesser included offense instruction on unintentional but reckless second-degree murder. We have concluded that the prosecutorial error did not prejudice Ross' right to a fair trial and that any instructional error was harmless. Though aggregate harmless errors may constitute reversible error overall, they did not do so here. The evidence against Ross was overwhelming, and his explanation and defense against that evidence changed numerous times. We can say, beyond a reasonable doubt, that the jury's verdict would not have changed even if the error and assumed error had not been present. Consequently, Ross was not denied a fair trial and his cumulative error claim fails.

CONCLUSION

We affirm the judgment of the district court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Yamuna RIZAL, Appellant.
    No. 115,036
    Supreme Court of Kansas.
    Opinion filed July 19, 2019.
    Jonathan Laurans, of Kansas City, Missouri, argued the cause, and Christopher Angles, of The Angles Law Firm, LLC, of Kansas City, Missouri, was with him on the briefs for appellant.
    Jacob M. Gontesky, assistant district attorney, argued the cause, and James Crux, legal intern, Stephen J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Stegall, J.:

After a bench trial on stipulated facts, the Johnson County District Court convicted Yamuna Rizal of possessing a controlled substance with the intent to distribute it at a gas station she owned in Shawnee. On appeal, Rizal argues the evidence was insufficient to support her conviction because of a mistake of fact-that she believed the packets she sold contained lawful incense, not a controlled substance. We hold the State was required to prove that Rizal had knowledge of the nature of the controlled substance she possessed and that it proved this element through circumstantial evidence. As a result, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2012, Detectives Shawn Miller and Steve Hahne with the Shawnee Police Department went to a Phillips 66 gas station to investigate a tip that the store was selling synthetic cannabinoids. When the detectives arrived, they found Rizal, a coowner of the store, working behind the counter. She agreed to let the detectives search behind the counter. They soon discovered packages that appeared to contain synthetic cannabinoids located under the counter, hidden from view. The packages later tested positive for naphthoylindole, a synthetic cannabinoid commonly called "K2." Rizal's gas station was located across the street from an elementary school.

The State charged Rizal with possession with intent to distribute naphthoylindole, a controlled substance, within 1,000 feet of a school. See K.S.A. 2011 Supp. 21-5705(a)(7) (making it unlawful to "possess with the intent to distribute any of the following controlled substances ... any substance designated in subsection (h) of K.S.A. 65-4105"); K.S.A. 2011 Supp. 65-4105(h)(2) (listing naphthoylindoles as controlled substances); K.S.A. 2011 Supp. 21-5705(c)(1)(A) (increasing the severity level for possession with intent to distribute a controlled substance that occurs within 1,000 feet of school property). The State also charged her with a drug stamp violation.

Rizal filed a motion to suppress, claiming her Miranda rights were violated and her consent to search was involuntary. The district court held a suppression hearing and denied the motion. Then the case went to a bench trial on stipulated facts:

"1. On April 3, 2012, Det. Shawn Miller and Det. Steve Hahne of the Shawnee Police Department responded to the Phillips 66 located ... in Shawnee, Johnson County, Kansas regarding a tip that the store was selling synthetic cannabinoids. This tip had come from the Johnson County Adult Residential Center which had located some synthetic cannabinoids at their facility which had purportedly come from the Phillips 66 located in Shawnee.
"2. Both officers were dressed in plain clothes with black vests marked 'Police' and police badges.
....
"4. Upon entering the store Det. Miller introduces himself to the woman working behind the counter. She is later identified as the defendant, Yamuna Rizal, who is over the age of 18 ....
"5. Rizal is wearing a 'DARE to Resist Drugs' t-shirt during their contact and has a piece of fabric printed with marijuana leaves covering the stool behind the counter which is clearly visible to people purchasing items at the counter.
"6. Det. Miller tells Rizal about the tip they have received, he asks her if she is selling 'incense', 'flavored tobacco' or 'K2'. She says she is not and that those products are illegal. During this conversation a customer comes up and Det. Miller offers to stand aside so Rizal can assist the customer. Det. Miller then asks Rizal if [sic ] 'just comes around the corner here and checks' and Rizal says 'no' (indicating she does not mind).
"7. Rizal initially says she does not know what Det. Miller means by 'K2' and he then describes the product. Det. Miller asks Rizal if she is the store owner and she states that she is.
"8. During the entire course of their contact Rizal continues to wait on customers as they come into the store.
"9. Det. Miller specifically asks a number of times if he can look in various areas and Rizal continually indicates he can search. While Det. Miller is behind the counter, Det. Hahne stays out of the way on the other side of the counter in the store.
"10. Officers locate a number of product packages which they believe are synthetic cannabinoids under the counter of the store and out of sight. These packages are labeled with names such as 'Kush', 'Caution', 'Flame' and 'Barely Legal'.
"11. Rizal offers to let the detectives go into the back of the store and take any additional packets of product which are also believed to be synthetic cannabinoids. Additional packages are located in the back room of the store and these are recovered.
"12. Det. Miller asks Rizal what customers would ask for if they wanted to purchase the products he has located behind the counter and Rizal says they would ask for 'incense'. Rizal says the last time she has sold the product was a month ago but then later says it was a week ago and then indicates they have been continuing to sell the product when she is confronted with paperwork indicating the store has ordered hundreds of packets of the product from distributors over the past few weeks. Paperwork recovered by Det. Miller showed the Phillips 66 had ordered over 3,000 packages of synthetic cannabinoids over the previous 4 months from a distributor in Florida.
"13. Rizal was able to tell Det. Miller the prices she was charging for some of the packages of product recovered. Rizal admitted she was selling 5 to 10 packages of synthetic cannabinoid per day.
"14. At the conclusion of their search and discussion with Rizal the officers exit the store. Rizal is not placed in handcuffs, physically restrained in any manner, touched or arrested during the officers contact with her.
"15. The Phillips 66 is located ... across the intersection from Shawanoe Elementary School. ...
"16. ... The distance from the Phillips 66 to the Shawanoe Elementary School was determined to be 827 feet.
"17. The packages of suspected synthetic cannabinoid are submitted to the Johnson County Crime Lab for testing. The Lab Report confirms the packets contain illegal synthetic cannabinoids (commonly called K2). See attached Lab Report, State's Exhibit 1. The total weight of the synthetic cannabinoids was in excess of 1 gram and there was not a Kansas Drug Tax Stamp affixed to the packages.

The district court found Rizal guilty on both counts and sentenced her to 36 months' probation and 60 days' jail time. Rizal timely appealed.

In the Court of Appeals, Rizal argued the district court erred when it denied her motion to suppress and the evidence was insufficient to convict her of possession with intent to distribute a controlled substance. The Court of Appeals affirmed the district court on both grounds. State v. Rizal , No. 115,036, 389 P.3d 1006, 2017 WL 658708 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1329 (2017). The decision to deny Rizal's motion to suppress is not before us because Rizal did not petition for review of that issue. See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53).

As for sufficiency, Rizal argued the State did not prove she possessed the K2 with "knowledge," as that term is defined in McFadden v. United States , 576 U.S. ----, 135 S. Ct. 2298, 192 L. Ed. 2d 260 (2015). In that case, the United States Supreme Court held that a conviction under 21 U.S.C. § 841(a)(1) (2012), which makes it unlawful to possess a controlled substance with the intent to distribute it, "requires the Government to establish that the defendant knew he was dealing with 'a controlled substance.' " 135 S. Ct. at 2302. The Court held that this "knowledge requirement" could be established two ways: (1) "by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was," and (2) "by showing that the defendant knew the identity of the substance he possessed." 135 S. Ct. at 2304. Rizal claimed the evidence fell short of McFadden because the State only proved that she knowingly sold what she thought was incense. Essentially, she argued a mistake of fact negated the requisite culpable mental state.

The Court of Appeals declined to adopt the McFadden knowledge requirement. It reasoned that "[u]nlike in McFadden , nothing in the Kansas statutes suggests that Rizal needed knowledge of the specific drug she was distributing." Rizal , 2017 WL 658708, at *9. In the panel's view, the State only had to prove that Rizal knew she was exercising control over something-she did not have to know what that something was. 2017 WL 658708, at *9. But in the alternative, the panel held that if McFadden applied, the State presented sufficient circumstantial evidence that Rizal knew the packages she possessed contained a controlled substance. 2017 WL 658708, at *10.

There are now two issues before us: (1) whether the Court of Appeals erred when it rejected McFadden 's knowledge requirement and held that a conviction for possession with intent to distribute a controlled substance does not require proof that the defendant knew the nature of the substance possessed, and (2) whether the State presented sufficient evidence that Rizal knew she was selling a controlled substance.

ANALYSIS

Rizal's new argument that she sold a controlled substance analog, instead of a controlled substance, is not preserved.

As a preliminary matter, Rizal now claims for the first time on appeal that the substance she possessed was not actually a controlled substance, but a controlled substance analog . This distinction could make a difference because possession of an analog can be harder to prove. A substance is "controlled" in Kansas if it is listed in one of the schedules, like naphthoylindole. See K.S.A. 2011 Supp. 21-5701(a) (defining "controlled substance" as "any drug, substance or immediate precursor included in any of the schedules"). In contrast, a "controlled substance analog" is defined as "a substance that is intended for human consumption" that (1) has a chemical structure "substantially similar" to that of a controlled substance; (2) has a "stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar" to that of a controlled substance; or (3) the defendant "represents or intends" to have the effects listed in (2). K.S.A. 2011 Supp. 65-4101(bb)(1) ; see K.S.A. 2011 Supp. 65-4101(bb)(2) (" 'Controlled substance analog' does not include: (A) A controlled substance."). So, for example, an analog of naphthoylindole could be a substance with a substantially similar chemical structure, though it is not specifically listed in the schedules.

The record shows that Rizal possessed naphthoylindole, a controlled substance. The lab report, which was attached to the stipulated facts, states that naphthoylindole was found in the packets Rizal sold. The district court found that she possessed naphthoylindole, a controlled substance, based on that lab report. And Rizal did not dispute that finding or the lab results before the district court.

To sidestep the record, Rizal now argues-for the first time in a supplemental brief-that the substance she sold chemically differs from naphthoylindole based on her lay analysis of the chemical compounds found in the packets. She invites us to use Wikipedia to decipher the chemical compounds listed in the lab report. But we decline to experiment with Wikipedia chemistry. See Peoples, The Citation of Wikipedia in Judicial Opinions , 12 Yale J. L. & Tech. 1, 29 (2010) (cautioning courts against "turning to Wikipedia to conduct ... ex parte research into the facts of cases before them"); see generally Wilson, Proceed with Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies , 16 Vand. J. Ent. & Tech. L. 857 (2014). And it is not our job to engage in fact-finding. See State v. Nelson , 291 Kan. 475, 488, 243 P.3d 343 (2010) ("Fact-finding is simply not the role of appellate courts."). Thus, we conclude that Rizal's new analog argument is unpreserved, and we accept as an undisputed fact in the record before us that Rizal possessed the controlled substance naphthoylindole. See State v. Rizo , 304 Kan. 974, Syl. ¶ 1, 377 P.3d 419 (2016) ("The general rule is that issues not raised before the trial court cannot be raised for the first time on appeal.").

The crime of possession with intent to distribute a controlled substance requires proof that the defendant had knowledge of the nature of the controlled substance.

Moving to the merits, Rizal asks us to adopt a McFadden -like approach and hold that the crime of possession with intent to distribute a controlled substance requires proof that the defendant either knew the identity of the substance or knew the substance was controlled. This means a mistake of fact-such as Rizal's alleged belief that the packets she sold contained ordinary incense-could negate the required knowing culpable mental state. See K.S.A. 2018 Supp. 21-5207(a) (generally, a mistake of fact "is a defense if it negates the existence of the culpable mental state which the statute prescribes with respect to an element of the crime"). The State claims the Court of Appeals was correct, so it only had to prove that Rizal knowingly exercised control over the packets-a fact nobody disputes. From the State's perspective, a mistake of fact as to the nature of the item possessed-i.e., whether the item is an ordinary brownie dessert or a brownie laced with a controlled substance-is no defense to this crime.

Rizal admits that McFadden -a federal decision interpreting a federal statute-is not controlling here. But she argues McFadden is persuasive because the Kansas crime of possession with intent to distribute a controlled substance bears a strong resemblance to its federal counterpart and the two share the same knowledge requirement. But, as Rizal implicitly recognizes, the root question is still one of Kansas statutory law.

"[S]tatutory interpretation is a question of law subject to unlimited review." State v. Buell , 307 Kan. 604, 606, 412 P.3d 1004 (2018). The traditional principles of statutory interpretation guide our analysis:

" 'The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. 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. 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 or other background considerations to construe the legislature's intent.' [Citations omitted.]" City of Dodge City v. Webb , 305 Kan. 351, 356, 381 P.3d 464 (2016).

In McFadden , the United States Supreme Court interpreted 21 U.S.C. § 841(a)(1), which states that "it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." (Emphasis added.) The Court determined that the knowledge requirement could be satisfied two ways:

"That knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was. Take, for example, a defendant whose role in a larger drug organization is to distribute a white powder to customers. The defendant may know that the white powder is listed on the schedules even if he does not know precisely what substance it is. And if so, he would be guilty of knowingly distributing 'a controlled substance.'
"The knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows he is distributing heroin but does not know that heroin is listed on the schedules, 21 CFR § 1308.11 (2014). Because ignorance of the law is typically no defense to criminal prosecution, Bryan v. United States, 524 U.S. 184, 196, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998), this defendant would also be guilty of knowingly distributing 'a controlled substance.' " McFadden , 135 S. Ct. at 2304.

In contrast, the relevant Kansas statute does not mention a knowledge requirement on its face. K.S.A. 2011 Supp. 21-5705(a) states: "It shall be unlawful for any person to cultivate, distribute or possess with the intent to distribute" any controlled substance, including naphthoylindoles. See K.S.A. 2011 Supp. 21-5705(a)(7) ; K.S.A. 2011 Supp. 65-4105(h)(2). The Court of Appeals noticed this discrepancy and concluded that "[t]he Kansas statute does not contain 'knowing' language because it is silent as to mens rea ." Rizal , 2017 WL 658708, at *9.

We disagree with the Court of Appeals on this point. The plain language of K.S.A. 2011 Supp. 21-5705(a) contains two mental states, one on its face and the other imbedded in the definition of the word "possession," which applies to crimes involving controlled substances. See K.S.A. 2011 Supp. 21-5701(q) (defining the term "possession"). First, K.S.A. 2011 Supp. 21-5705(a) requires possession to be committed "with the intent to distribute" any controlled substance. Second, K.S.A. 2011 Supp. 21-5701(q) defines "possession" as "having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control." The possessed item here is a "controlled substance," which is defined as "any drug, substance or immediate precursor included in any of the schedules," like naphthoylindole. K.S.A. 2011 Supp. 21-5701(a).

Harmonizing these provisions, the crime of possession with intent to distribute a controlled substance requires proof that the defendant possessed-meaning knowingly exercised control-over any controlled substance with the intent to distribute it. But what does it mean to "knowingly" exercise control over a controlled substance? The State argues that "knowingly" applies only to the act of exercising control over the packets. But Rizal claims "knowingly" also extends to the nature of the substance itself-meaning knowledge of its identity (a naphthoylindole) or its controlled status, as in McFadden .

To resolve this question, we turn to the plain language of the term "knowingly." As defined by statute: "A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist." (Emphases added.) K.S.A. 2011 Supp. 21-5202(i) ; see PIK Crim. 4th 52.010 (2015 Supp.). In this context, the term "nature" commonly means "[a] fundamental quality that distinguishes one thing from another; the essence of something." Black's Law Dictionary 1238 (11th ed. 2019); see Webster's New World College Dictionary 974 (5th ed. 2014) (defining "nature" as: "the essential character of a thing; quality or qualities that make something what it is; essence"). Taken together, this means a person must know the essence of the substance possessed; the fundamental quality that distinguishes that substance from another one.

Kansas caselaw has long supported this interpretation. For decades, we have required the State to prove that a defendant knew about the nature of the substance possessed to sustain a conviction for possession of a controlled substance. See State v. Keel , 302 Kan. 560, Syl. ¶ 1, 357 P.3d 251 (2015) ("Possession of a controlled substance requires specific intent to exercise control over the substance, with knowledge of the nature of the substance."); State v. Washington , 244 Kan. 652, 654, 772 P.2d 768 (1989) (same); see also State v. Faulkner , 220 Kan. 153, 156, 551 P.2d 1247 (1976) ("Knowledge signifies awareness and is a requirement for 'possession.' 'Knowledge of the presence of a narcotic or dangerous drug as embraced within the concept of physical control with the intent to exercise such control is essential.' ").

We also discussed the type of knowledge required for possession of a controlled substance-and how a mistake of fact may negate that knowledge-in the context of a challenge to the admissibility of prior drug crime evidence under K.S.A. 60-455. In State v. Rosa , 304 Kan. 429, 437, 371 P.3d 915 (2016), we held that evidence of a defendant's prior acquaintance with drugs is admissible under K.S.A. 2014 Supp. 60-455(b) when the defendant puts his or her knowledge in dispute by providing an innocent explanation for the presence of the drugs. As we explained, "Possible 'innocent explanations' would include the claims that the defendant either was unaware of the presence of the drugs or was under the mistaken belief that the drugs were not illegal drugs but were some other lawful substance ." ( Emphasis added.) 304 Kan. at 437, 371 P.3d 915. In either scenario, "evidence of prior drug use by the defendant is relevant and probative to prove a disputed material fact-viz. , the truth or falsity of the defendant's 'innocent explanation.' " 304 Kan. at 437, 371 P.3d 915 ; see State v. Graham , 244 Kan. 194, 196-97, 768 P.2d 259 (1989).

Today, we hold that to convict a defendant of possession with intent to distribute a controlled substance under K.S.A. 2011 Supp. 21-5705(a), the State must prove that the defendant had knowledge of the nature of the controlled substance-meaning, that the defendant either knew the identity of the substance or knew that the substance was controlled. This tracks longstanding caselaw and the plain language of K.S.A. 2011 Supp. 21-5705(a) (possession with intent to distribute a controlled substance); K.S.A. 2011 Supp. 21-5701(q) ("possession"); and K.S.A. 2011 Supp. 21-5202(i) ("knowingly"). We agree with Rizal that a mistake of fact about the nature of a controlled substance-meaning the actual belief that it is "some other lawful substance" that is not controlled, Rosa , 304 Kan. at 437, 371 P.3d 915 -could negate the knowledge requirement. Thus, the plain language of the relevant Kansas statutes dictates a result much like McFadden .

The State presented sufficient evidence that Rizal knowingly possessed a controlled substance.

The final question is whether the State presented sufficient evidence that Rizal either knew the substance was a naphthoylindole or knew the substance was controlled. In the stipulated facts, Rizal told the officers that customers would ask for "incense" to buy the packets. Rizal claims she used that term innocently and believed she was selling lawful incense; she did not know what the substance was or that it was controlled. She does not dispute that she intended to distribute the packets.

The State argues that Rizal knew the substance in the packets was illegal, though she used the euphemism "incense" to describe it. For example, the State points out that one detective asked if Rizal was selling "incense," "flavored tobacco," or "K2,"-street names for synthetic cannabinoids-and she said no and explained that those products are illegal. The State also argues that Rizal's contradictory statements about when she last sold the packets suggest that she knew she was selling something illegal.

"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. Potts , 304 Kan. 687, 694, 374 P.3d 639 (2016). We do not reweigh evidence, resolve conflicting evidence, or pass on the credibility of witnesses. 304 Kan. at 694, 374 P.3d 639. Furthermore, "there is no distinction between direct and circumstantial evidence in terms of probative value" because " '[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 jury has the right to make the inference.' " 304 Kan. at 694, 374 P.3d 639 (quoting State v. McCaslin , 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 [(2011)] ).

In short, we agree with the Court of Appeals that there is sufficient "circumstantial evidence that the Rizal knew she was distributing a substance listed on the schedules, even if she did not know which substance it was." Rizal , 2017 WL 658708, at *10. The packets were hidden below the counter, out of public view. Rizal acknowledged that so-called "incense" is illegal to sell; admitted that customers would ask for "incense" to buy the packets; was evasive about when she last sold the packets; and eventually admitted that she sold 5-10 packets per day. See 2017 WL 658708, at *10. Rizal's comments and behavior suggest that she did not, in fact, believe she was selling lawful incense but rather an illegal substance with the same street name. Viewed in the light most favorable to the State, a rationale fact-finder could find beyond a reasonable doubt that Rizal knowingly possessed a controlled substance on these facts.

In sum, we conclude the Court of Appeals erred in its interpretation of K.S.A. 2011 Supp. 21-5705(a)'s knowledge requirement. But we affirm the Court of Appeals' alternative holding that the State presented sufficient evidence that Rizal knew the substance was controlled. For that reason, we affirm.

Affirmed.

Johnson, J., not participating.

Glenn R. Braun, District Judge, assigned.

      REPORTER'S NOTE: District Judge Braun was appointed to hear case No. 115,036 vice Justice Johnson under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.


text:
    In the MATTER OF the ESTATE OF Ray V. OROKE
    No. 116,333
    Supreme Court of Kansas.
    Opinion filed August 2, 2019.
    Michael Jilka, of Nichols Jilka LLP, of Lawrence, argued the cause and was on the briefs for appellant Karen Barney.
    Arthur E. Palmer, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, argued the cause, and Bruce H. Hanson, of Oskaloosa, was with him on the briefs for appellee Donna Fairbanks.
   The opinion of the court was delivered by Malone, J.:

A testator deposited his original will and a codicil with the probate court of his home county as permitted by statute. The statute mandated the district court to retain the will during the lifetime of the testator and to open the will publicly and retain the same upon being notified of the testator's death. K.S.A. 59-620 (Furse 1994).

A few weeks after the testator's death, heirs tried to locate the will at the courthouse. The clerk of the court was unable to find it and informed the heirs that the will was not in the custody of the court. The heirs searched for the will at other locations to no avail. Eventually, the testator's daughter filed an intestate probate proceeding. While the intestate proceeding was pending, and after the limitation period for petitioning a will for probate had passed, the clerk of the court located the will and codicil among the files of the probate court.

The testator's stepdaughter filed a separate petition to probate the will. The district court consolidated the two probate proceedings and admitted the will to probate. The testator's daughter appealed. The Court of Appeals reversed the ruling of the district court, citing statutory language limiting the circumstances that toll the limitation period and caselaw by this court interpreting these provisions. This court granted the stepdaughter's petition for review.

After oral argument before this court, the stepdaughter moved for appellate attorney fees to be paid from the estate.

The primary question before this court is whether the will in the authorized custody of the district court, but not found until after the statute of limitations had expired, should be admitted to probate. We ultimately hold that it should be admitted to probate. We also grant, in part, the motion for attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Ray V. Oroke was a resident of Jefferson County, Kansas. During the relevant time period, K.S.A. 59-620 (Furse 1994) permitted a party to deposit a will in the district court of the county where the testator resided upon the payment of a deposit fee of one dollar. The statute required the court to give a certificate of the deposit and to "retain such will." After being notified of the testator's death, the court was required to open the will publicly and retain the same. K.S.A. 59-620 (Furse 1994) was repealed in 1995. L. 1995, ch. 103, § 2.

On July 14, 1954, Oroke executed a Last Will and Testament and deposited it with the Jefferson County probate judge as authorized by K.S.A. 59-620 (Furse 1994). He did this on the same day he executed it. The will was placed in an envelope bearing Oroke's full name and the name of his executor and was file-marked "No. 153."

On November 17, 1988, Oroke signed a codicil to the will naming new executors. His attorney filed it with the Jefferson County District Court on the same day it was signed and witnessed. The will and codicil were placed in an envelope bearing Oroke's full name and the names of his new coexecutors and was again file-marked "No. 153."

Karen Barney, Oroke's daughter, had discussed a will with her father several times and thought it was likely that a will existed somewhere. Kevin Barney (Karen's son and Oroke's grandson) also discussed a will with Oroke and was told that he and Donna Fairbanks (Oroke's stepdaughter and Karen's stepsister) were to be coexecutors. Oroke told Donna that a copy of the will was in his safety deposit box. Both Oroke and his lawyer mentioned to Donna that the will was registered at the courthouse.

Oroke died on October 15, 2014. On November 6, 2014, Karen; her daughter, Laura; her son, Kevin; and Donna went will hunting. First, they visited the McLouth bank where Oroke had a safety deposit box. They did not find a will there, but they found an unsigned codicil to a will.

The group then went to the Jefferson County courthouse. Laura, Kevin, and Donna went inside, while Karen waited in the car. Kevin asked an employee of the clerk of the district court if the will was on file at the court. The court employee said "they didn't know anything about that" but then asked someone in the back of the clerk's office if the will was on file. The court employee returned and said the court had no will and codicil on file for Oroke, that "they used to do that, but they don't do that anymore," and that the family might try the title of deeds office. Undeterred, the family went to the register of deeds office, where a search once again failed to produce a will. Kevin later spoke with a lawyer who had bought the law office from Oroke's retired lawyer, but the lawyer was unable to locate any documents relating to Oroke. Kevin and Laura next went to Oroke's house and looked for the will without success.

On March 10, 2015, Karen filed a petition in Jefferson County District Court requesting the issuance of letters of administration. The petition asserted that Oroke died intestate. On April 29, 2015, the court granted the petition and appointed Karen administrator of the estate.

In mid-September 2015, Donna hired a lawyer to find the will. On September 25, 2015, with the assistance of the lawyer, the will and codicil were located among the files of the Jefferson County probate court. On September 28, 2015, Donna filed a written opposition to the petition for letters of administration and asked the court to terminate Karen's appointment as administrator and freeze all transfers of assets from the estate.

Donna filed her own petition for probate of the will and for letters testamentary. Donna attached the original will and codicil; the envelopes that contained them; and a September 10, 1973, signed certificate by Oroke stating that he had opened envelope No. 153 to inspect the will, returned the will to envelope No. 153, resealed the envelope, and returned it to the custody of the probate judge. (These September 10, 1973, events were witnessed by the probate judge.) Donna's petition was filed under a separate case number from Karen's proceeding, and the district court later consolidated the two cases.

Karen filed an objection to the petition for probating the will. Nevertheless, on November 3, 2015, the district magistrate judge granted Donna's petition and admitted the will to probate. Karen took a timely appeal from that decision to the district court.

On July 13, 2016, the district court rejected Karen's appeal and entered an order admitting the will to probate. The court found that Donna and Kevin exercised due diligence in attempting to locate the will. The court further held that a mistake on the part of the court would toll the statute of limitations for filing a petition admitting a will to probate, and it named Donna and Kevin coexecutors of the will. Karen took a timely appeal to the Court of Appeals.

The Court of Appeals reversed the judgment of the district court, holding that the petition to probate the will was filed outside the statute of limitations; that no exceptions applied to toll the statute because the will was not "knowingly" withheld, and that this case was indistinguishable from In re Estate of Strader , 301 Kan. 50, 339 P.3d 769 (2014). In re Estate of Oroke , No. 116,333, 2017 WL 1196856 (Kan. App. 2017) (unpublished opinion). This court granted Donna's petition for review.

On October 24, 2018, oral argument was heard by this court. On November 5, 2018, Donna filed a motion for appellate attorney fees related to both the Court of Appeals and Supreme Court proceedings to be paid from the estate. Karen filed no response to the motion.

IS THE STATUTE OF LIMITATIONS TOLLED IF THE WILL IS IN THE AUTHORIZED CUSTODY OF THE DISTRICT COURT BUT NOT FOUND UNTIL THE STATUTORY TIME PERIOD HAD EXPIRED ?

Standard of Review

The facts are undisputed. Application of legal principles to undisputed facts involves questions of law subject to de novo review. In re Estate of Clare , 305 Kan. 967, 969, 389 P.3d 1274 (2017).

Analysis

In order to commence an action in probate regarding the contents of a will, a petitioner must file the will with the court and commence the action within six months after the death of the testator. K.S.A. 59-617. This functions as a statute of limitations. Strader , 301 Kan. 50, Syl. ¶ 4, 339 P.3d 769.

K.S.A. 59-618 provides for an exception to the six-month limitation period when someone who knows where a will is located knowingly withholds it from the court:

"Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the petition for probate of the will after the expiration of six months from the death of the decedent.
"The provisions of this section as amended by this act shall apply retroactively to the withholding of a will of a testator."

Strader is the lead case interpreting these provisions. The Strader court determined that the plain statutory language requires a knowing withholding of a will before the K.S.A. 59-618 exception to the six-month limitation will apply. It is not enough that a party be "innocent"; a party must have knowingly withheld a will from a court before an aggrieved party may benefit from the tolling of the limitation period. 301 Kan. at 57-58, 339 P.3d 769. This court expressly rejected an analysis of K.S.A. 59-618 that favored a result protecting "all innocent beneficiaries, regardless of the time that has passed after the testator's death." 301 Kan. at 58, 339 P.3d 769. A panel of the Court of Appeals had reasoned that either the knowing withholding or the unintentional misplacing of a will may defeat an innocent beneficiary's rights under the will, so allowing for late filing for either reason is logical. This court disagreed, relying instead on the plain language of K.S.A. 59-618 that requires "knowingly withhold[ing]" a will before the six-month limitation of K.S.A. 59-617 may be tolled. 301 Kan. at 60, 339 P.3d 769.

We disagree with the Court of Appeals determination that this case is not distinguishable from Strader "in any meaningful way." 2017 WL 1196856, at *3. In this case, the party that had possession of the will was not a potential beneficiary or lay person entrusted with keeping the will. Rather, the will was in the custody of the clerk of the district court, the court official who was in charge of safely keeping and preserving all papers filed with the court. K.S.A. 2018 Supp. 20-343, K.S.A. 20-3102, and K.S.A. 2018 Supp. 60-2601.

Oroke's will was thus not lost, misplaced, or missing, but was right where it was lawfully supposed to be: in the custody and safekeeping of the court.

The will was deposited in the court under K.S.A. 59-620 (Furse 1994), and the court was required to retain the will. This practice of depositing wills for safekeeping with the court had been authorized by statute for over 125 years. See G.S. 1868, ch. 117, sec. 3; G.S. 1915, ch. 126, sec. 11755; R.S. 1923, 22-204; G.S. 1939 Supp. 59-620. And it is critical to note when the Legislature repealed the law in 1995, it did not undo the requirement for the court to retain the wills that had already been deposited, nor did the Legislature provide a method for relocating or transferring wills that were in the lawful custody of the court. All wills deposited pursuant to K.S.A. 59-620 (Furse 1994) could remain in the custody and safekeeping of the court.

To address the limbo created by the repeal of K.S.A. 59-620, Supreme Court Rule 108(e)(4)(A) (2019 Kan. S. Ct. R. 178) was enacted, which requires that "[s]ealed wills on deposit under former K.S.A. 59-620 must be maintained for 75 years after the year of deposit. ... The formerly required will index must be maintained to include the date of destruction ...." The districts' chief judges and clerks of the court are therefore under a mandate from the Kansas Supreme Court to retain the wills and to maintain indexes showing that the wills are on file. In this case, only the clerk had access to the will, and the clerk had a duty to produce the will upon the request of any interested party. The clerk failed in that duty. It is this failure in duty that distinguishes this case from Strader .

The judicial employees' failure to follow the law thus calls into application the unique circumstances doctrine. "Our determination of both the viability and applicability of the unique circumstances doctrine involves questions of law, over which this court has unlimited review." Board of Sedgwick County Comm'rs v. City of Park City , 293 Kan. 107, 113, 260 P.3d 387 (2011).

In Slayden v. Sixta , 250 Kan. 23, 30, 825 P.2d 119 (1992), this court considered a case in which the failure to obtain timely service on an opposing party was "due directly to the error of the clerk of the district court." We looked to federal precedent applying a unique circumstances test, which requires both a demonstration of good faith by the party seeking an enlargement of time and a reasonable basis for noncompliance within the time specified by the rules. 250 Kan. at 30, 825 P.2d 119. We considered the unique circumstances doctrine to be "an elastic concept" that is appropriate to prevent a party from suffering prejudice as a result of a mistake by the clerk of the district court. 250 Kan. at 30-31, 825 P.2d 119.

"[T]he application of the doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error." Finley v. Estate of DeGrazio , 285 Kan. 202, 209, 170 P.3d 407 (2007). It is limited in application to situations in which the error was by a nonparty and the parties did not contribute to creating the error. In Finley, the court concluded that the application of the unique circumstances doctrine was limited to situations involving a party's reliance upon an error of the district court, as opposed to error by counsel. See 285 Kan. at 209-11, 170 P.3d 407 (doctrine limited to nonparty error and parties may not rely on doctrine when they invite nonparty error); see also In re Tax Appeal of Sumner County , 261 Kan. 307, 317, 930 P.2d 1385 (1997) (erroneous orders by administrative agency created unique circumstance justifying enlargement of time to petition for rehearing); Nguyen v. IBP, Inc. , 266 Kan. 580, 587, 972 P.2d 747 (1999) (administrative agency improperly addressed notice of award making it impossible for claimant to meet statutory time requirements).

In Park City , we further limited the use of this doctrine by prohibiting its use to create an equitable exception to jurisdictional requirements. 293 Kan. at 118-20, 260 P.3d 387 (citing Bowles v. Russell , 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 [2007] ); see also Woods v. Unified Gov't of Wyandotte County/KCK , 294 Kan. 292, 298, 275 P.3d 46 (2012) ("Recently, we abolished the unique circumstances doctrine ...."). However, the Park City court expressly distinguished its decision from Finley, a nonjurisdictional case involving a statute of limitations question:

"[T]he Court of Appeals felt there was also some indication that the doctrine remained viable in Kansas. As previously noted, the Court of Appeals pointed to this court's decision in Finley, 285 Kan. 202 [170 P.3d 407], where this court cited to Bowles but still considered whether the doctrine applied to the facts of the case. However, the Court of Appeals failed to recognize the distinction between Bowles, which dealt with a jurisdictional time limit related to the filing of a notice of appeal, and Finley, which dealt with a statute of limitations that is a defense related to a nonjurisdictional time limit and is subject to equitable tolling. See, e.g., Holland v. Florida, 560 U.S. 631, 645, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (1-year statute of limitations on petitions for federal habeas relief by state prisoners is not jurisdictional and is subject to equitable tolling in appropriate cases) ....
"In other words, this court's application of the unique circumstances doctrine in Finley has no application to the consideration of whether the doctrine should or can be applied when a time limitation is jurisdictional. Further, we note that the issue of whether Bowles brought the viability of the doctrine into question in nonjurisdictional settings was not presented to or decided by the court in Finley ." (Emphasis added.) 293 Kan. at 118-19, 260 P.3d 387.

Caselaw has recognized "the unique circumstances doctrine is still viable, in the appropriate situation, to prevent a cause of action from being barred by the statute of limitations." Mangus v. Stump , 45 Kan. App. 2d 987, 998-99, 260 P.3d 1210 (2011), rev. denied 293 Kan. 1107 (2012); see Huffman v. Stormont-Vail Healthcare, Inc. , No. 113,383, 2016 WL 3655903, at *10 (Kan. App. 2016) (unpublished opinion) ("[T]he doctrine remains viable to save a cause of action from being dismissed on statute of limitations grounds."); Baeza v. Kemal , No. 113,057, 2015 WL 7162332, at *9-10 (Kan. App. 2015) (unpublished opinion), rev. denied 305 Kan. 1251 (2016) (analyzing unique circumstances doctrine under Mangus and Finley ); Dartez v. Peters , No. 15-3255-EFM-DJW, 2018 WL 1138282, at *6-7 (D. Kan. 2018) (unpublished opinion) (no need to certify the continuing viability of the unique circumstances doctrine to this court based on Park City and Mangus ).

The circumstances of this case conform in all respects with the requirements of the unique circumstances doctrine: the failure to conform to time restrictions was due directly to the error by the clerk of the district court; Donna acted in good faith (indeed, all heirs acted in good faith); and there was a reasonable basis as to why Donna did not comply with the time restrictions; i.e., she was prevented from doing so by the clerk of the court who failed in exercising the responsibilities imposed by the Legislature and by this court.

Furthermore, the will was located and the petition was filed less than six months after the statutory time restrictions had run and while intestacy proceedings were still pending in the district court. The prejudice to Karen resulting from enlarging the time limitation is small; whereas the injustice to Donna would be great, all because the clerk of the district court failed to remember or to follow the clear edict of the Legislature and this court. Furthermore, allowing the clerk's mistake to preclude probating the will would defeat the intentions of Oroke, who relied on the law and did everything that the law asked of him, and whose intentions the law seeks to uphold. See Strader , 301 Kan. at 59, 339 P.3d 769 (clear legislative intent to probate wills, not to suppress or withhold them from probate); In re Estate of Graves , 203 Kan. 762, 776, 457 P.2d 71 (1969) (Schroeder, J., dissenting) (effectuating intention of testator is primary function of courts).

Application of equitable principles in this case is also consistent with the analysis undertaken by other jurisdictions.

In Muldrew v. Dodson , 237 Ark. 852, 376 S.W.2d 672 (1964), the court excused the failure to probate a will within the statute of limitations. The testator died in 1947, whereupon his will was properly filed in the office of the probate clerk, but for some reason no order admitting the instrument to probate was ever entered, a duty that was statutorily incumbent on the clerk. The case lay dormant until 1963, when the guardian and next friend of the only surviving principal beneficiary under the will filed a petition for its probate. The court concluded: "It would be unjust to apply the [statutory] limitation in this instance, not only because a public officer was at fault in the matter but also because, in a doubtful situation, we prefer to give effect to the testator's intention by upholding the will." 237 Ark. at 853, 376 S.W.2d 672.

In In re Smith, 144 Me. 235, 67 A.2d 529 (1949), the testatrix died in 1925, survived by her widower and son. When her husband died in 1934, the son made a thorough search for his mother's will but could not find it. The son then employed an attorney, who inquired at the probate office. While the register of probate could find nothing at first, a second search among the inactive files revealed the will, which had not been indexed or docketed. The Maine Supreme Judicial Court held that, in reversing the judgment dismissing the son's petition for probate, the will had been lost by the probate office, which had the duty to care for the records in its possession. 144 Me. at 238, 67 A.2d 529. Because the will was in the place where it should have been and the petitioner had done all that the law asked of him, the will was eligible for probate even though the statutory period had run. 144 Me. at 238, 67 A.2d 529 ; see also Wood v. Wood , 251 Ky. 710, 65 S.W.2d 969 (1933) (former clerk testified he had received and filed original will, suggesting next clerk was negligent in not locating it; new trial was justified); In re Lane's Will , 32 Ky. (2 Dana) 106 (1834) (will filed with county clerk was lost, court held: "Accidents ought not to destroy the rights of parties. It does not appear to be the fault of the executors, or of the clerk, that the original is not produced ...."); McNeely v. Pearson , 42 S.W. 165 (Tenn. Ct. Chancery App. 1896) (county clerk negligently failed to transcribe full will that had been given to his custody; appellate court applied equity to protect original intent of testator).

K.S.A. 59-621 provides that a person having custody of a will "shall deliver it to the court which has jurisdiction thereof." The statute requires that "[e]very person who willfully neglects or refuses to deliver a will after being duly ordered to do so shall be guilty of contempt of court." K.S.A. 59-621. Here, the will was delivered to the court, but the court erroneously informed the heirs that it did not have possession of the will. Obviously, the court could not find itself in contempt. Generally, when an effort is undertaken to correct a mistake (in this case, a mistake by a judicial employee), limitation statutes do not begin to run on actions until the mistake is discovered or when, by use of due diligence, it should have been discovered. See Klepper v. Stover , 193 Kan. 219, 221-22, 392 P.2d 957 (1964).

The unique circumstances doctrine is one this court uses sparingly. However, neither the Legislature in repealing K.S.A. 59-620, nor this court in enacting Supreme Court Rule 108(e)(4)(A), intended that an error by a judicial employee should be inconsequential as to the statute of limitations. Equitably tolling the statute of limitations provides a realistic and fair remedy for an unusual situation not contemplated by the statutory scheme. To be clear, this is not a modification of Strader , but a holding limited to the unique and rare circumstances in this case of a clerk of the district court not following a duty imposed by law.

IS DONNA FAIRBANKS ENTITLED TO APPELLATE ATTORNEY FEES ?

Standard of Review

"The question of whether a court has the authority to award attorney fees is a question of law over which an appellate court has unlimited review." Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 162, 298 P.3d 1120 (2013).

Analysis

Twelve days after oral argument before this court, Donna filed a motion for attorney fees for services performed by her attorneys in the Court of Appeals and the Supreme Court in the amount of $4,018.50, plus $49.65 in expenses. Karen filed no response. Kansas Supreme Court Rule 7.07(b)(1) and (2) (2019 Kan. S. Ct. R. 50) sets forth three requirements this court must consider when attorney fees are sought on appeal.

First, this court may award attorney fees for services on appeal if the district court had authority to award attorney fees. Supreme Court Rule 7.07(b)(1). Donna cites K.S.A. 59-1504 as the district court's authority to award fees. That statute provides in pertinent part:

"Whenever any person named in a will or codicil ... prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, ... such person shall be allowed out of the estate his or her necessary expenses ... together with such compensation for ... services ... of his or her attorneys as shall be just and proper." K.S.A. 59-1504.

We agree that Donna's attempts to have the appellate courts uphold the district court's admission of the will to probate provides this court with authority to entertain Donna's motion for attorney fees.

Second, "[a] motion for attorney fees on appeal must be made under Rule 5.01 [2019 Kan. S. Ct. R. 30] and be filed no later than 14 days after oral argument" or 14 days after "the day argument is waived or the date of the letter assigning the case to a non-argument calendar, whichever is later." Supreme Court Rule 7.07(b)(2) (2019 Kan. S. Ct. R. 51). No motion was filed for attorney fees while the case was pending before the Court of Appeals. The only motion seeking fees and expenses for the entire appellate process was filed on November 5, 2018, 12 days after oral arguments were heard by this court on October 24, 2018.

Although this motion was timely filed for this court to consider the appellate services rendered before the Kansas Supreme Court, it was not timely filed for us to consider the fees for services while the appeal was pending in the Court of Appeals. "If a party would be entitled to appellate attorney fees under a statute or contract upon prevailing on appeal, the party must timely file a Supreme Court Rule 7.07(b) ... motion in order to preserve the right to those fees." Snider , 297 Kan. 157, Syl. ¶ 4, 298 P.3d 1120. As the Snider court aptly concluded, "[O]nly the Court of Appeals could consider the reasonableness of the appellate fees related to the proceedings before the Court of Appeals." 297 Kan. at 168, 298 P.3d 1120.

Finally, Supreme Court Rule 7.07(b)(2) (2019 Kan. S. Ct. R. 51) requires a movant to attach an affidavit to the motion for attorney fees specifying: "(A) the nature and extent of the services rendered; (B) the time expended on the appeal; and (C) the factors considered in determining the reasonableness of the fee," which are set forth in Kansas Rule of Professional Conduct 1.5 (2019 Kan. S. Ct. R. 300). We hold the attorney affidavit attached to the motion complies with these requirements.

Nevertheless, we can only consider the request for appellate legal services performed after March 31, 2017, the date the Court of Appeals filed its opinion and the date Donna could begin preparing her petition for review. According to our calculations, the requested fee must be reduced by $1,247.25 for appellate services while the case was in the Court of Appeals. We now must consider if the remaining fee of $2,759.50 for services rendered while the appeal was in this court is reasonable by applying the factors set forth in KRPC 1.5(a) (2019 Kan. S. Ct. R. 300):

"(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
"(3) the fee customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
"(8) whether the fee is fixed or contingent."

In applying these factors, no one factor creates a presumption that controls unless and until it is rebutted by one or more of the other factors. Johnson v. Westhoff Sand Co. , 281 Kan. 930, 951, 135 P.3d 1127 (2006). Because there is no lower court determination for us to review, we may make our own determination of what reasonable fee, if any, to award. See Johnson , 281 Kan. at 959, 135 P.3d 1127 ("Appellate courts are experts on the reasonableness of attorney fees."). Based on our careful review of the attorney's affidavit and knowing the novel legal issue and work involved in this appeal, we find the requested attorney fees to be reasonable. Therefore, we award attorney fees in the amount of $2,759.50 to be paid from the estate.

The decision of the Court of Appeals is reversed. The decision of the district court is affirmed, and the case is remanded for further proceedings conforming with this opinion.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,333 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.