author: Malone, J.:

text:
    In the INTERESTS OF K.H., K.R.T., and K.J.T., Minor Children.
    No. 120,239
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Rachel I. Hockenbarger, of Topeka, for appellant.
    Morgan L. Hall, deputy district attorney and Michael F. Kagay, district attorney, for appellee.
    Before Arnold-Burger, C.J., Pierron and Malone, JJ.
   Malone, J.:

J.H. (Mother) appeals the termination of her parental rights to her children, K.R.T., K.J.T., and K.H. The district court granted a default judgment against Mother because she failed to appear in person at the hearing on the State's motion to terminate parental rights, even though Mother appeared at the hearing through her court appointed counsel. On appeal, Mother claims the district court violated her due process rights by terminating her parental rights through a default judgment. She also claims there was insufficient evidence to support the district court's findings that she was an unfit parent and that termination of her parental rights was in the children's best interests. For the reasons stated in this opinion, we conclude the district court erroneously terminated Mother's parental rights based on a default judgment without hearing any evidence.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2015, the State filed a petition alleging K.R.T., K.J.T., and K.H. were children in need of care (CINC). The petition named N.C. as the father of K.R.T. and K.J.T., and it named R.H. as the father of K.H. The fathers are not involved in this appeal. As to Mother, the petition alleged that she physically abused the children.

The district court held a temporary custody hearing the next day. Mother and her court appointed attorney appeared at the hearing. At the end of the hearing, the district court placed the children into the temporary custody of the Department for Children and Families (DCF).

The district court held an adjudication hearing on November 30, 2015. Mother appeared in person and through her attorney. At the hearing, Mother did not contest the allegations in the petition and the district court adjudicated the children as CINC. The district court held a disposition hearing on January 25, 2016, and ordered that the children remain in DCF custody.

The record reflects no other court hearings until late in 2016. In December 2016, the district court held a permanency hearing with the goal of reintegration or adoption. The district court held a review hearing in March 2017, and the court ordered social services to provide therapist recommendations to Mother. The district court held the next hearing in May 2017, and it ordered reports on progress in therapy. The district court held another review hearing in July 2017, and it ordered the social service agency to distribute reports relating to autism, psychological evaluations, and parenting assessments to all parties. Mother appeared in person and through her attorney at each of these hearings.

On July 31, 2017, Mother moved for direct placement of the children with her or, in the alternative, for accelerated reintegration. In her motion, Mother alleged she had stable housing, gainful employment, and was complying with her parole and requests from social services. But she argued social services were not making efforts to rehabilitate the family because social services did not start family therapy or allow her visits with the children longer than one hour. Mother requested the children be placed with her and allow court services to supervise her care of the children.

Before the district court could hear Mother's motion, the State moved to terminate her parental rights. The motion alleged that Mother was failing her reintegration plan due, in part, to her recent incarceration. According to the motion, Mother was incarcerated for felony fleeing or eluding, felony interference with law enforcement, misdemeanor possession of marijuana, and several traffic violations. The record does not reflect the final disposition of the criminal charges. The State's motion also requested termination of the fathers' parental rights. The motion included a notice that "[a]ll parties are hereby notified pursuant to K.S.A. 38-2234 and K.S.A. 60-255 that if you do not appear at the hearing, the court will be making decisions without your input which could result in a default judgment against either parent who fails to appear."

The district court held several hearings before scheduling a trial on the motion to terminate parental rights. At a review hearing on August 28, 2017, the district court ordered a continuance on both pending motions. The district court held a permanency hearing in October 2017. At a review hearing on November 14, 2017, and again at a hearing on January 3, 2018, the district court continued the pending motions. Mother appeared in person and through her attorney at each of these hearings.

In March 2018, the district court held a review hearing where Mother addressed the court "regarding sibling visits and ... communication and cooperation issues between Mother and [social services] assigned to her case." The district court ordered sibling visits to occur within two weeks and continued the case for pretrial and trial.

The district court held a pretrial hearing in April 2018. Mother failed to appear and the court continued the case for another pretrial hearing in May 2018. The record contains no journal entry for the May 2018 hearing, but the record shows the hearing occurred in May and that Mother again failed to appear.

The district court scheduled a trial on the State's motion to terminate parental rights on June 26, 2018. Mother did not appear in person at the hearing, but she was represented by her court appointed attorney. The district court recessed for 10 minutes to give Mother a chance to appear late, but she did not appear when court resumed. Mother's attorney referred the court to an unpublished Kansas appellate decision finding that a mother's due process rights had been violated when the district court refused to hold over a termination hearing for a third day to allow the mother to testify after she had failed to appear on the second day of the hearing. The district court responded that "if it is an unpublished opinion then per Supreme Court rule it has no [precedential] value."

On the State's request, the district court granted "default judgment in regards to [M]other's termination of parental rights." The district court entered a finding that Mother was "unfit as set forth in the State's motion." The district attorney asked the court for clarification in whether it was making a best interests finding. The district court agreed that it was making a best interests finding and noted that it had "reviewed the file and the materials in it" earlier that morning.

The State later filed a journal entry terminating Mother's parental rights. In the journal entry, the district court found Mother unfit because of: (1) failure of reasonable efforts by appropriate public agencies to rehabilitate the family; (2) lack of effort on Mother's part to adjust her circumstances, conduct, or conditions to meet the needs of the children; (3) failure to maintain regular visitation, contact, or communication with the children; and (4) failure to carry out a reasonable plan approved by the court directed toward reintegration.

Mother moved to reconsider and set aside the default judgment. In her motion, Mother asserted that she was not at the termination hearing because of "mistake, inadvertence or, at the very worst, excusable neglect." She explained she missed the trial because she was confused because previous hearings had been in the afternoon. She argued that the children were bonded to her and that setting aside the default judgment would not prejudice the State. Mother asserted that she had a history of appearing in court during the case and that she always worked her case plan and visited with her children. At a hearing at which Mother appeared in person, the district court denied the motion to reconsider and set aside the default judgment, finding that Mother's stated reason for missing court was not a "meritorious defense." Mother timely filed a notice of appeal.

ANALYSIS

On appeal, Mother claims the district court violated her due process rights by terminating her parental rights through a default judgment. She also claims there was insufficient evidence to support the district court's findings that she was an unfit parent and that termination of her parental rights was in the children's best interests. Because we find that these two issues are interrelated, we will address them together.

As to Mother's due process claim, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." In re J.D.C. , 284 Kan. 155, 166, 159 P.3d 974 (2007). When considering whether there has been a due process violation, appellate courts apply an unlimited standard of review. State v. Hall , 287 Kan. 139, 143, 195 P.3d 220 (2008).

As to Mother's sufficiency of the evidence claim, "[w]hen this court reviews a district court's termination of parental rights, we consider whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable, i.e. , by clear and convincing evidence, that the parents' right should be terminated." In re K.W ., 45 Kan. App. 2d 353, 354, 246 P.3d 1021 (2011). In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re B.D.-Y. , 286 Kan. 686, 705, 187 P.3d 594 (2008).

Although Mother's claim that the district court erred by granting a default judgment is based on an alleged violation of her constitutional due process rights, we find that the claim can be resolved through statutory analysis. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015).

We begin by reviewing the statutory procedure for termination of parental rights in the Revised Kansas Code for Care of Children (Revised Code), K.S.A. 2018 Supp. 38-2201 et seq. In all proceedings under the Revised Code, the rules of evidence of the code of civil procedure shall apply. K.S.A. 2018 Supp. 38-2249(a). Under the Revised Code, any party may request that the parental rights of either or both parents be terminated based on a finding of unfitness, either by making the request in the original petition filed in the case or in a separate motion filed in an existing case. K.S.A. 2018 Supp. 38-2266(a).

Upon the filing of a motion to terminate parental rights, the district court shall appoint an attorney to represent any parent who is not already represented by counsel. K.S.A. 2018 Supp. 38-2267(d) states that before a hearing on a motion to terminate parental rights, "the court shall appoint an attorney to represent any parent who fails to appear and may award a reasonable fee to the attorney for services." This statute contemplates that a termination of parental rights hearing can proceed with appointed counsel when the parent fails to appear.

At the hearing on a motion to terminate parental rights, the court may grant the motion when it finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2018 Supp. 38-2269(a). In determining unfitness, the court shall consider, but is not limited to, the factors set forth in K.S.A. 2018 Supp. 38-2269(b) and (c). If the court makes a finding of unfitness, it shall also consider whether termination of parental rights is in the best interests of the child. K.S.A. 2018 Supp. 38-2269(g)(1).

Finally, the Revised Code directs the district court how to proceed at a hearing on a motion to terminate parental rights when a parent fails to appear. K.S.A. 2018 Supp. 38-2248(f) provides that in evidentiary hearings for termination of parental rights, "the case may proceed by proffer as to parties not present, unless they appear by counsel and have instructed counsel to object." In other words, when a parent fails to appear at the hearing on a motion to terminate parental rights, the State may proceed by proffering the evidence supporting the motion if there is no objection by counsel for the parent. But if the parent has instructed his or her counsel to object to a proffer, then the State should proceed by presenting evidence to the court in support of termination.

Here, the district court did not follow the statutory procedure in granting a judgment terminating Mother's parental rights. Although Mother failed to appear in person at the hearing on the motion to terminate her parental rights, she appeared at the hearing through her attorney. In this situation, at a minimum, the State should have proceeded by proffering the evidence in support of its motion to the district court. In the event of an objection to a proffer, the State should have proceeded to offer clear and convincing evidence to support its motion to terminate Mother's parental rights.

Instead of following the statutory procedure, the district court announced, without receiving any evidence, that it was granting a "default judgment in regard to [M]other's termination of parental rights." The district court found that Mother was "unfit as set forth in the State's motion." But the State's motion was not evidence, nor did any party ask the district court to consider the motion as evidence. In clarifying that it was also making a best interests finding, the district court noted that it had "reviewed the file and the materials in it" earlier that morning.

We recognize that a court may take judicial notice of its own court file. See K.S.A. 60-409(b)(4) ; In re A.S. , 12 Kan. App. 2d 594, 598, 752 P.2d 705 (1988). But in proceedings under the Revised Code, there are two separate files in any CINC case: the official file containing all the pleadings filed in district court and the social file containing reports and evaluations of the parties involved in the case. See K.S.A. 2018 Supp. 38-2211. Here, the district court did not specify whether it had reviewed its official court file or the social file before the hearing and, in any event, no party requested the district court to take judicial notice of any file to serve as an evidentiary basis supporting the State's motion to terminate parental rights. Without a clearer record, we have no way of knowing what documents the district court may have reviewed before the hearing or whether the documents supported the district court's decision to terminate Mother's parental rights.

The district court later filed a journal entry terminating parental rights, noting that a default judgment had been granted against Mother. The journal entry also specified several statutory grounds for finding that Mother was an unfit parent under K.S.A. 2018 Supp. 38-2269(b) and (c). But as we have explained, the record shows that no party presented any evidence to the district court supporting the statutory factors.

We also recognize that the State's motion to terminate parental rights stated that "[a]ll parties are hereby notified that pursuant to K.S.A. 38-2234 and K.S.A. 60-255 that if you do not appear at the hearing, the court will be making decisions without your input which could result in a default judgment against either parent who fails to appear." But an examination of these two statutes shows that they do not support the district court's decision to grant a default judgment against Mother under the circumstances of this case.

K.S.A. 2018 Supp. 38-2234(a)(8) states that a pleading in a CINC case shall notify the parties that "[i]f you do not appear in court the court will be making decisions without your input ." (Emphasis added.) But notifying a party that failure to appear in court will allow the court to make decisions without the party's input is not the same as notifying the party that failure to appear in court will allow the court to make decisions without hearing any evidence. Thus, K.S.A. 2018 Supp. 38-2234 did not authorize the district court to grant a default judgment against Mother without receiving any evidence.

Likewise, K.S.A. 2018 Supp. 60-255 did not authorize the district court to grant a default judgment under the circumstances presented here. That statute provides, in part:

"(a) When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, the party is in default. On request and a showing that a party is entitled to a default judgment, the court must render judgment against the party in default for the remedy to which the requesting party is entitled.... If the party against whom a default judgment is sought has appeared personally, or by a representative, that party or its representative must be served with written notice of the request for judgment at least seven days before the hearing."

Under K.S.A. 2018 Supp. 60-255, a party is in default when the party "has failed to plead or otherwise defend" against the action. Mother was not in default under this statute because she had appeared either in person or through counsel at every hearing scheduled in the case including the hearing to terminate parental rights. She certainly had not failed to plead or otherwise defend against the action as contemplated by the statute.

We have found no published appellate decisions in Kansas addressing default judgments granted on a motion to terminate parental rights. But In re A.H. , No. 103138, 2010 WL 1379713 (Kan. App. 2010) (unpublished opinion), is similar to the facts here. In that case, the State moved to terminate the father's parental rights. Although the father was represented by stand-by counsel, he failed to appear in person at the termination hearing. Upon the State's request, the district court entered a default judgment terminating the father's parental rights. The district court received no evidence at the hearing, but the court stated that "it had reviewed the files and found sufficient evidence of unfitness." 2010 WL 1379713, at *1.

On appeal, the father challenged the sufficiency of the evidence supporting the termination order. This court began its analysis by questioning whether K.S.A. 60-255(a) on default judgments applies to a Chapter 38 proceeding. But without deciding that question, this court stated: "While [Father] did not appear to defend the State's unfitness allegations, [Father] was represented by stand-by counsel. Even if stand-by counsel was unprepared to represent [Father]'s interests, the district court should have proceeded with the hearing and required the State to produce evidence in support of termination." 2010 WL 1379713, at *2. This court observed that K.S.A. 2009 Supp. 38-2269(a) provides that the court may terminate parental rights only when the court finds by clear and convincing evidence that the parent is unfit and that the conduct or condition is unlikely to change in the foreseeable future. Based on the statute, this court concluded that "the State was not entitled to judgment unless and until the State established clear and convincing evidence of [Father]'s unfitness to the satisfaction of the court." 2010 WL 1379713, at *2.

In re A.H. is distinguishable from the facts here because the district court in that case made no statutory findings of unfitness. Here, the journal entry filed by the district court included statutory findings of unfitness. But as we have discussed, these findings were not based on any evidence presented at the termination hearing, so the distinction between the two cases is not significant. We agree with the court's analysis in In re A.H. The State is not entitled to receive a default judgment against a parent who fails to appear in person at a termination hearing as long as the parent appears at the hearing through counsel. In that situation, the State must present evidence, or at least proffer evidence, supporting its motion to terminate parental rights before the district court can grant judgment on the motion. Cf. In re D.H. , No. 119882, 2019 WL 1087762, at *4-5 (Kan. App. 2019) (unpublished opinion) (finding district court's decision to deny parent's motion to set aside default judgment was not an abuse of discretion).

To sum up, the district court erred by granting a default judgment against Mother terminating her parental rights because she was not in default in the proceedings. Mother had appeared in person at most of the hearings throughout the case and she appeared through her court appointed counsel at the hearing on the motion to terminate parental rights. A CINC case is a civil proceeding, and although one might expect a parent to attend a hearing on a motion to terminate parental rights, there is no requirement for a parent to attend such a hearing unless the parent has been subpoenaed by a party. And even a failure to obey a subpoena or court order to attend a hearing would not render the parent in default to allow the court to terminate parental rights without receiving any evidence. Here, Mother had been notified that her failure to appear at the hearing could result in the court making decisions without her input that could result in the termination of her parental rights. But this notice did not allow the district court to terminate Mother's parental rights without receiving any evidence supporting the motion.

Mother claims on appeal that there was insufficient evidence to support the district court's findings that she was an unfit parent and that termination of her parental rights was in the children's best interests. We agree. In fact, the State presented no evidence supporting its motion to terminate Mother's parental rights. The court may grant a motion terminating parental rights only when it finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future. K.S.A. 2018 Supp. 38-2269(a). When Mother failed to appear at the hearing on the motion to terminate her parental rights, the State, at a minimum, should have proceeded by proffering the evidence in support of its motion to the district court. In the event of an objection to a proffer, the State should have proceeded to offer clear and convincing evidence to support its motion to terminate Mother's parental rights.

Based on the record before us, we conclude there was insufficient evidence to support the district court's findings that Mother was an unfit parent and that termination of her parental rights was in the children's best interests. The case is remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Gardner, J.:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Felipe M. GONZALEZ, Appellant.
    No. 119,311
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
    Heather Cessna, of Kansas Appellate Defender Office, for appellant.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Standridge, P.J., Gardner, J., and Walker, S.J.
   Gardner, J.:

Felipe Gonzalez pleaded guilty to various criminal charges, was granted probation, and then violated the terms of his probation. The district court revoked his probation and imposed a modified sentence. After serving that sentence, Gonzalez was ordered to be deported from the United States.

Gonzalez later filed an untimely postsentence motion to withdraw his plea, arguing his trial attorney had failed to tell him about the effect his guilty plea could have on his immigration status. Gonzalez also claimed he did not know that as a permanent resident noncitizen he would be treated differently than a United States citizen. The district court denied the motion finding it untimely. It found that Gonzalez' ignorance of his status and of the law did not rise to the level of excusable neglect as was necessary to consider the merits of his untimely motion. Because we agree that Gonzalez made no showing of excusable neglect, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, the State charged Gonzalez with multiple offenses:

• possessing a controlled substance;
• driving under the influence;
• driving with a suspended license;
• transporting an open container;
• making an illegal left turn;
• failing to maintain a single lane; and
• failing to signal a lane change.

Gonzalez pleaded guilty to all charges, some of which were felonies, without entering a plea agreement. During his plea hearing and as part of his plea, Gonzalez was given an acknowledgement of rights form which stated: "If I am not a United States citizen, I understand that a conviction of a felony offense most likely will result in my deportation from the United States." He signed it.

The district court sentenced Gonzalez to 16 months' imprisonment and 12 months' postrelease supervision but granted him 12 months' probation. Gonzalez filed no direct appeal of his sentence or convictions. When Gonzalez violated his probation in 2013, the district court revoked his probation and ordered him to serve a modified sentence of eight months in prison with a six-month concurrent jail term.

After serving that sentence, Gonzalez was ordered to be deported from the United States in 2016. In 2017, Gonzalez moved to withdraw his plea, arguing that he had not been told that his plea could result in his deportation. Gonzalez conceded that he had signed an acknowledgment of rights form during his plea and that it warned that a felony conviction could affect his legal status. But Gonzalez asserted that neither his attorney nor the district court had specifically discussed deportation with him. And he claimed that he had had little time during his plea hearing to review the form before he signed it.

The district court held a preliminary hearing on Gonzalez' motion to withdraw his plea. Gonzalez requested an evidentiary hearing but the State objected, arguing Gonzalez' motion was untimely and failed to show excusable neglect. The district court gave Gonzalez the opportunity to submit an amended motion showing excusable neglect.

Gonzalez' amended motion claimed his neglect was excusable because at the time of his plea, he thought he was a lawful permanent resident noncitizen entitled to the same protections as a United States citizen. Gonzalez asserted that his misunderstanding was reinforced when Immigration and Customs Enforcement (ICE) released him after having initially detained him. As a result, he thought he could not be deported and did not believe otherwise until the court ordered him to be deported in December 2016.

The district court denied Gonzalez' motion without an evidentiary hearing. It found:

• By the time Gonzalez' probation was revoked, Gonzalez was aware of the risk of deportation because of the ICE hold on him;
• Gonzalez' failure to appreciate or investigate the consequences of his plea after his ICE detention was simple ignorance of the law that did not rise to the level of excusable neglect; and • Gonzalez' signed acknowledgment at the plea hearing showed his awareness of the risk of his deportation.

The district court concluded that Gonzalez failed to show excusable neglect and so denied his untimely motion to withdraw his plea. Gonzalez timely appeals.

THE DISTRICT COURT PROPERLY DENIED GONZALEZ' UNTIMELY POSTSENTENCE MOTION TO WITHDRAW HIS PLEA

Gonzalez argued to the district court that he should be allowed to withdraw his plea because his attorney failed to inquire into his immigration status and did not adequately advise him of the consequences of his plea as it related to his immigration status, in violation of Padilla v. Kentucky , 559 U.S. 356, 130 S. Ct. 1473, 176 L.Ed. 2d 284 (2010). Gonzalez acknowledges that his motion to withdraw his plea was filed outside the applicable one-year filing limitation. However, he argues excusable neglect for the untimeliness of his motion because he was unaware that he could be deported as a consequence of his plea until he was ordered deported in 2016.

"To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea." K.S.A. 2018 Supp. 22-3210(d)(2). Generally, an appellate court will not disturb a district court's denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Johnson , 307 Kan. 436, 443, 410 P.3d 913 (2018). But because the district court summarily denied Gonzalez' postsentence motion to withdraw his plea without taking additional evidence, our review is de novo. This is because we have the same access to the motions, records, and files as does the district court. State v. Fritz , 299 Kan. 153, 154-55, 321 P.3d 763 (2014).

As noted above, our statute permits a district court to allow a defendant to withdraw his or her plea after sentencing to prevent manifest injustice. But a postsentence motion to withdraw a plea must be filed within one year of either:

• "(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or"
• "(B) the denial of a petition for a writ of certiorari to the United States supreme court or issuance of such court's final order following the granting of such petition." K.S.A. 2018 Supp. 22-3210(e)(1).

See State v. Moses , 296 Kan. 1126, 1128, 297 P.3d 1174 (2013). The court may extend this one-year time limitation only "upon an additional, affirmative showing of excusable neglect by the defendant." K.S.A. 2018 Supp. 22-3210(e)(2).

Gonzalez was sentenced on July 16, 2012, and he did not appeal. So he had until July 30, 2013, to file his postsentence motion to withdraw his plea. See K.S.A. 2018 Supp. 22-3210(e)(1)(A) (stating postsentence motion to withdraw plea must be brought within one year of termination of appellate jurisdiction); K.S.A. 2018 Supp. 22-3608(c) (providing 14 days to perfect appeal after judgment of the district court). Gonzalez, however, did not file his motion until almost four years later-March 13, 2017. Gonzalez concedes that his motion to withdraw his plea was filed outside the one-year statutory time limit. Because Gonzalez' motion was untimely, the district court could review it only if Gonzalez showed excusable neglect in failing to timely file his motion.

Excusable neglect requires "something more than unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind." Montez v. Tonkawa Village Apartments , 215 Kan. 59, 65, 523 P.2d 351 (1974). " 'Excusable neglect requires some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney.' " State v. Davisson , 303 Kan. 1062, 1069, 370 P.3d 423 (2016) (quoting Whitefish Credit Union v. Sherman , 367 Mont. 103, 109, 289 P.3d 174 [2012] ).

Although neither our statutes nor our published Kansas cases define excusable neglect in the context of a postsentence motion to withdraw a plea under K.S.A. 2018 Supp. 22-3210(e)(2), panels of this court have relied on the following definition in determining similar cases:

" ' "[E ]xcusable neglect ... A failure-which the law will excuse-to take some proper step at the proper time (esp. in neglecting to answer a lawsuit) not because of the par[t]y's own carelessness, inattention, or willful disregard of the court's process, but because of some unexpected or unavoidable hindrance or accident or because of reliance on the care and vigilance of the party's counsel or on a promise made by the adverse party." Black's Law Dictionary 1133 (9th ed. 2009).
" 'This definition is consistent with Kansas cases applying K.S.A. 60-206 and K.S.A. 60-260, both of which use the term excusable neglect. See Tyler v. Cowen Construction, Inc. , 216 Kan. 401, 406-07, 532 P.2d 1276 (1975) ; Wilson v. Miller , 198 Kan. 321, 322-23, 424 P.2d 271 (1967).... Although these definitions are found in civil cases, our court has conversely examined criminal cases when defining "manifest injustice" under K.S.A. 60-1507(f)(2), which is part of the civil code. See Ludlow v. State , 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007).' " State v. Romero , No. 112891, 2016 WL 463783, at *2-3 (Kan. App. 2016) (unpublished opinion) (appealing order denying untimely postsentence motion to withdraw a guilty plea).

See State v. Reed , No. 111663, 2015 WL 4716290, at *3-4 (Kan. App. 2015) (unpublished opinion).

We are guided by those definitions here.

Gonzalez' argument relies heavily on the United States Supreme Court's holding in Padilla , an ineffective assistance of counsel case. Padilla's attorney gave him false assurance that his conviction would not result in his removal from this country. The Court held that the defense attorney's failure to advise his or her client that a conviction would lead to deportation was constitutionally deficient performance. The Court recognized that basic competence requires a criminal defense attorney to advise a noncitizen client whether a conviction likely will lead to deportation if that effect can be readily determined. When deportation is less clear, however, the attorney is not expected to perform to the standards of an expert in immigration law and need only inform the client that an uncertain risk exists of adverse immigration consequences. 559 U.S. at 368-69, 130 S.Ct. 1473. Gonzalez argues that his counsel never explicitly counseled him about the effect his plea would have on his immigration status even though Padilla predated his plea by several years.

But this is not an ineffective assistance of counsel case and Gonzalez' counsel did not advise him incorrectly, as did the attorney in Padilla . More importantly, the record shows that Gonzalez received proper warning of the likelihood of his deportation, satisfying Padilla ' s requirements. True, Gonzalez may not have subjectively realized that his deportation was imminent until the court ordered him to be deported in December 2016. But the record establishes that he was made aware when he entered his guilty plea that his legal status in the United States was at risk and that he would most likely be deported as a result of his plea. The acknowledgement of rights and entry of plea form that Gonzalez signed was enough to satisfy Padilla 's requirements, as its language clearly identified deportation as a likely outcome instead of a mere abstract possibility. It stated: "If I am not a United States citizen, I understand that the conviction of a felony offense most likely will result in my deportation from the United States." We have repeatedly held this form sufficient for this purpose. See, e.g., Romero , 2016 WL 463783, at *3 (finding no excusable neglect); State v. Montes-Jurado , No. 105564, 2013 WL 1444321, at *4 (Kan. App. 2013) (unpublished opinion) (finding no good cause shown to withdraw plea); State v. Lowe , No. 103678, 2012 WL 139264, at *4 (Kan. App. 2012) (unpublished opinion) (finding no manifest injustice). We do so again here.

The district court asked Gonzalez if he had reviewed the acknowledgment of rights and entry of plea form with his attorney and whether he understood its terms. Gonzalez answered that he had. Gonzalez signed the acknowledgment during his plea hearing, and the transcript shows that Gonzalez knew and understood its terms. Although the district court or counsel could have chosen to do more, as in State v. Laicer , No. 112087, 2015 WL 5036916, at *6 (Kan. App. 2015) (unpublished opinion), where deportation was discussed extensively at both the plea hearing and the sentencing hearing, what was done was legally sufficient.

This brings us to Gonzalez' challenge to the district court's application of the maxim that ignorance of the law is no excuse. The district court seemingly referenced Davisson by holding that Gonzalez' "head in the sand" approach was not enough to show excusable neglect. In Davisson , a prisoner argued excusable neglect for his untimely motion to withdraw a plea based upon his ignorance of the ability to bring the action. The defendant argued only that "he did not know about the option to withdraw his guilty plea or its statutory deadline-i.e. , that he was ignorant of the law." 303 Kan. at 1069, 370 P.3d 423. The Supreme Court rejected this argument and held that ignorance of a statute, of a court rule, or of the existence of a legal remedy is not enough to establish excusable neglect to overcome the statute of limitations. 303 Kan. at 1069-70, 370 P.3d 423. It found " '[t]he maxim that ignorance of the law is no excuse is well established, longstanding, and widely known.' " 303 Kan. at 1068, 370 P.3d 423.

Gonzalez argues that his case is distinguishable from Davisson because he is not claiming ignorance of the law. Instead, he was ignorant of the need to withdraw his plea due to a combination of the following facts:

• his misunderstanding of his legal status;
• his counsel's failure to address that status with him in relation to his plea, as required by Padilla ; and
• his arrest and release by ICE.

Gonzalez thought he was a permanent resident alien and had the same rights and privileges as a United States citizen. His belief that he could not be deported was strengthened when ICE released him after having detained him, so he did not anticipate deportation as a possible consequence of his plea. But Gonzalez points to no facts he was unaware of at the time of his plea-instead he voluntarily and with knowledge of the facts pleaded guilty and now claims ignorance or mistake as to the legal effect of those facts. But his claim of ignorance is refuted by the clear terms of the acknowledgment of rights form he signed.

To show he was confused about his immigration status, Gonzalez points to his probation revocation hearing. There, Gonzalez stated he was "legal here." Although Gonzalez' statement may or may not reflect that he misunderstood his immigration status when his probation was revoked, Gonzalez did not assert then, or at the time of his plea, or in his brief on appeal that he is a United States citizen. Nor does he assert that as a permanent resident noncitizen he has rights equivalent to those of a United States citizen. Instead, "a lawful permanent resident has fewer rights than a citizen." United States v. Huitron-Guizar , 678 F.3d 1164, 1166-67 (10th Cir. 2012) (explaining the elaborate ascending scale of constitutional rights). Gonzalez, a noncitizen, by signing the acknowledgment of rights form at the time of his plea, received clear warning that his deportation was likely.

Gonzalez also argues the fact that ICE released him after having detained him made him think he could not be deported. But Gonzalez has not shown how ICE's release warrants that conclusion. That ICE had detained him could just as easily suggest Gonzalez was aware that his criminal convictions could jeopardize his stay here. But any doubt on that score was later resolved by the express warning in the acknowledgment of rights form that Gonzalez signed and said he understood.

We agree that Gonzalez failed to show excusable neglect as is necessary to permit him to file his motion to withdraw his plea beyond the statutory one-year time limitation. The district court correctly held that his motion to withdraw his plea was procedurally barred.

Affirmed.


author: Arnold-Burger, C.J.:

text:
    STATE of Kansas, Appellant, v. Edward C. GLOVER, Appellee.
    No. 120,098
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Kerwin L. Spencer, county attorney, and Derek Schmidt, attorney general, for appellant.
    Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
    Before Arnold-Burger, C.J., Hill, J., and Stutzman, S.J.
   Arnold-Burger, C.J.:

A defendant is guilty of a burglary of a nondwelling when he or she "without authority, enter[s] into or remain[s] within any: ... building ... or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein." K.S.A. 2018 Supp. 21-5807(a)(2).

Edward C. Glover entered the unlocked St. Anthony's Catholic Church and entered the locked sacristy where he stole items from a locked cabinet. The State charged Glover with burglary. The district court dismissed the charge at the preliminary hearing, reasoning that the State did not prove Glover entered the building without authorization because the church was open to the public. On appeal, the State argues the district court erred because the sacristy can be considered a building or structure under the meaning of the Kansas burglary statute. Because we find that the sacristy does not fit the definition of a building or structure under the clear language of K.S.A. 2018 Supp. 21-5807(a)(2), we affirm.

FACTUAL AND PROCEDURAL HISTORY

In March 2017, Marian Bryant, a sacristan for St. Anthony's Catholic Church, went to the sacristy to prepare for services and discovered two chalices, one ciborium, and one paten were missing. The items were normally in a locked cabinet inside the sacristy. The sacristy is a room that is normally locked and located within the church. The church itself was unlocked and open to the public.

According to Timothy Nash, he and Glover went to the church to take some money. When they were unable to find any money, Glover took the items out of the cabinet. Glover was eventually charged with one count of burglary of a nondwelling and one count of felony theft.

The court held a preliminary hearing on the charges and dismissed the burglary charge. The court reasoned that there was insufficient evidence to show Glover entered the building without authority. The court believed that Glover was authorized to enter the church and the sacristy was not a separate building or dwelling within the church because it was all owned by the same entity.

The State filed a motion to reconsider or in the alternative to dismiss the remaining charge so the State could pursue an appeal. The court denied the State's motion to reconsider and granted the motion to dismiss. The State appeals the dismissal of the burglary charge.

ANALYSIS

Burglary of a nondwelling is defined by statute as "without authority, entering into or remaining within any: ... building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexually motivated crime therein." K.S.A. 2018 Supp. 21-5807(a)(2).

The sole issue on appeal is whether a sacristy is a "building ... or other structure" under the Kansas burglary statute. See K.S.A. 2018 Supp. 21-5807(a)(2). This requires interpretation of a statute, which is a question of law over which appellate courts have unlimited review. State v. Lees , 56 Kan. App. 2d 542, Syl. ¶ 4, 432 P.3d 1020 (2018).

When interpreting a statute, the most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained.

State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). Courts should attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. An appellate court should resort to using statutory canons of construction only if the statute is ambiguous or unclear. See State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016).

The Kansas Supreme Court has addressed what qualifies as a building or other structure under K.S.A. 2018 Supp. 21-5807(a)(2), or similar statutes, for over 30 years. See State v. Hall , 270 Kan. 194, 202, 14 P.3d 404 (2000) (holding that the closed stockroom in the back of a K-Mart store was not a separate building or structure distinct from the store-which Hall entered lawfully); State v. Moler , 269 Kan. 362, 369, 2 P.3d 773 (2000) (holding that a lean-to was not a "structure" under the Kansas burglary statute because it was not enclosed); State v. Fisher , 232 Kan. 760, 763, 658 P.2d 1021 (1983) (holding that a hog pen was not a "structure" under the burglary statute because it was "open-air, free-standing, [and] low-fenced"). In Hall , the court reasoned it had to "strictly construe penal statutes in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent." 270 Kan. at 202, 14 P.3d 404. The court cited with approval Chief Judge Brazil's comment on the case when it was before the Court of Appeals suggesting that the Kansas Legislature should consider revising the Kansas burglary statute so that it treats the subparts of a structure as separate structures within the Kansas burglary statute like the states of Texas and Oregon. 270 Kan. at 198, 14 P.3d 404.

Likewise, this court has had several opinions dealing with the definition of the terms building or structure in the statute. We held a Dillard's store within a mall counts as a building or structure for the purposes of the burglary statute. State v. Vinyard , 32 Kan. App. 2d 39, 42-43, 78 P.3d 1196 (2003). In Vinyard , a panel of this court reasoned that malls contain various stores and each "are separate businesses [which] have their own entrances. Each store is completely enclosed and secured separate and distinct from the other businesses in the mall." 32 Kan. App. 2d at 42, 78 P.3d 1196. To hold otherwise would result in Vinyard being found not guilty of burglary if she entered Dillard's from the interior mall entrance but guilty of burglary if she entered from the specially designated outer entrance. 32 Kan. App. 2d at 42, 78 P.3d 1196. The court also touched on the fact that each store is leased to separate businesses. 32 Kan. App. 2d at 42, 78 P.3d 1196.

Judge Elliott dissented. He agreed with the opinion in Hall that suggested we should not align the statute to fit the facts. He noted that in Hall the Supreme Court had challenged the Legislature to change the statute if intended for the crime to include situations like rooms within public buildings. He concluded that because no changes had been made at the time of Vinyard , three years later, the Legislature agreed with the narrow interpretation provided in Hall . 32 Kan. App. 2d at 46-47, 78 P.3d 1196 (Elliott, J., dissenting).

This court addressed Hall and Vinyard in the context of hospital rooms in State v. Parker , 48 Kan. App. 2d 68, 282 P.3d 643 (2012). In Parker , another panel of this court reasoned that because patients temporarily lease the hospital room, much like businesses lease space from the mall, the case was similar to Vinyard . See 48 Kan. App. 2d at 85, 282 P.3d 643. The court held a hospital room was a structure because it "had a door, was temporarily leased to occupants, was designed to exclude others, and was intended to protect the occupant's privacy and security." 48 Kan. App. 2d at 85, 282 P.3d 643. And unlike Hall , a patient's room is occupied by a person while a store's stockroom is ordinarily not occupied. Parker , 48 Kan. App. 2d at 85, 282 P.3d 643.

This court has continued to expand the definition of buildings or structures in several unpublished opinions. Again stressing the importance of a leasehold interest in State v. Hauser , No. 95744, 2007 WL 2819883 (Kan. App. 2007) (unpublished opinion), a panel considered whether a tanning booth was a structure for the purposes of burglary. It concluded that the tanning booth "was a completely enclosed separate room," leased by its occupant, and the "door and lock were clearly designed to exclude others from entering" to "protect the security and privacy of the booth occupant." 2007 WL 2819883, at *2. Accordingly, it was a building or structure under the burglary statute. 2007 WL 2819883, at *3.

In State v. Foster , No. 113,883, 2016 WL 4500953, at *5 (Kan. App. 2016) (unpublished opinion), this court held a defendant could be convicted of burglary for entering an individual's locked rented room within a house even though the defendant had permission to enter the remainder of the house. The court reasoned that "the room had a door, ... was designed to exclude others, and was intended to protect [the victim's] privacy and security." 2016 WL 4500953, at *4. The panel distinguished the situation from Hall because in Hall "the same owner controlled the public and nonpublic portions of the building." 2016 WL 4500953, at *4. It concluded that when different parties control different portions of the building, the situation changes. Any other interpretation would be unreasonable, the court opined, because it would mean that an apartment complex tenant could not commit burglary if he or she were to break into another tenant's unit to steal something. The court held "[l]eased portions of a building that are separately enclosed and secured are to be treated as separate structures for burglary purposes." 2016 WL 4500953, at *4.

This court continued the focus on whether a building was split into multiple areas with multiple lessees in State v. Armstrong , No. 117038, 2018 WL 2373235 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. ---- (February 28, 2019). The State charged Armstrong, in part, with two counts of burglary. Armstrong broke into two garages which shared a common wall but were leased by different individuals. After entering one and taking various items, Armstrong removed plywood separating the two garages and entered the adjoining garage. Armstrong stole additional items in the second garage. The two burglary charges related to the separate entries into the two garages. The court concluded that each individual's garage contained in a free-standing structure was a building for the purposes of the burglary statute. 2018 WL 2373235, at *6. The court focused on the fact that each garage, like the individual stores in Vinyard , were leased to different tenants. Therefore, the court concluded each individual garage was a distinct building. 2018 WL 2373235, at *6.

So this court, through its published and unpublished decisions, seems to have read into the burglary statute a definition of building or structure that hinges, in part, on whether an individual or entity is renting or leasing a space within the main building. But we caution, as did Judge Elliott in Vinyard , that the plain language of the statute says nothing about whether a room is leased by someone other than the owner. The statute states only that a person may be guilty of burglary if they enter a "building ... or other structure" without authority. K.S.A. 2018 Supp. 21-5807(a)(2). Likewise, the Kansas Legislature has made no changes to the statute in the last 19 years to treat the subparts of a structure as separate structures as suggested in Hall . Yet, the State asks us to go one step further here and find that because the room was locked, even if under common ownership, it is a separate building or structure. We decline the invitation for two reasons. First, even if we rely on previous caselaw focusing on whether someone is leasing a subpart of a building Glover could not be guilty of a burglary. Like the storeroom in Hall , the sacristy was only owned by the church. It was not leased out to another individual or entity. See 270 Kan. at 202, 14 P.3d 404. Glover was authorized to enter the church and the sacristy was solely owned by the church.

Second, we find that the plain language of the statute requires an unauthorized entry into a "building ... or other structure." K.S.A. 2018 Supp. 21-5807(a)(2). A room is not a building or structure under a common understanding of either word. See Webster's New World College Dictionary 1262 (5th ed. 2014) ("room" is "a space within a building enclosed by walls or separated from other similar spaces by walls or partitions"); Webster's New World College Dictionary 1440 (5th ed. 2014) ("structure" is "something built or constructed, as a building or dam"); Webster's New World College Dictionary 195 (5th ed. 2014) ("building" is "anything that is built with walls and a roof, as a house or factory; structure"). The sacristy was nothing more than a room within the church building. Whether a room inside a building is locked does not impact whether entry into the building or structure was authorized. Moreover, the State's interpretation would lead to unintended results. If the defendant entered a business without authorization and then entered a locked storage closet, the defendant would be guilty of two burglaries under the State's interpretation. This is not consistent with the plain language of the statute.

We pause to note that the State relies on State v. Harding , 208 Kan. 882, 494 P.2d 1122 (1972), to support its argument that the locked room is a separate structure or building. In Harding , the defendant was convicted of burglary after entering an unlocked church and taking money from a locked desk drawer in a locked office. The issue on appeal was "whether the circumstantial evidence disclosed by the record is sufficient to sustain the findings of guilty made by the trial court." 208 Kan. at 882, 494 P.2d 1122. The Kansas Supreme Court upheld Harding's conviction. 208 Kan. at 885, 494 P.2d 1122.

The State argues that the facts of Harding are the same as the facts here. But Harding did not address whether a locked room was a building or structure under the burglary statute. The only issue on appeal in Harding was whether there was sufficient circumstantial evidence to find Harding guilty. See 208 Kan. at 882, 884, 494 P.2d 1122. The Kansas Supreme Court did not address whether a room within a church qualifies as a building or structure. The "severance of factual predicate from legal holding conflicts with appropriate judicial reasoning ... and can easily lead to erroneous outcomes." State v. Pollman , --- Kan. App. 2d ----, ---- - ----, 441 P.3d 511, (No. 118,672 filed May 10, 2019), (Atcheson, J., dissenting). Such is the case with the State's reliance on Harding .

As the court in Hall noted, "Kansas courts are required to strictly construe penal statutes in favor of the accused." 270 Kan. at 195, 14 P.3d 404. If this interpretation is not what the Legislature intended, the law could be changed to more clearly include subunits of a building as being buildings or structures. See Tenn. Code Ann. § 39-14-402(a)(1) (including entering "any portion" of a building without consent).

Based on the plain language of the statute, we affirm the decision of the district court. A building is a building and a structure is a structure. The sacristy is neither.

Affirmed.


author: Per Curiam:

text:
    STATE of Kansas, Appellee, v. Steven C. CHURCH, Appellant.
    No. 118,311
    Court of Appeals of Kansas.
    Opinion filed July 5, 2019.
    Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Standridge, P.J., Gardner, J., and Walker, S.J.
    MEMORANDUM OPINION
   Per Curiam:

Steven C. Church directly appeals his convictions by a jury of rape and aggravated indecent liberties with a child. On appeal, Church claims his convictions are based on insufficient evidence. Church also argues that the district court erred by failing to instruct the jury to consider the victim's testimony without sympathy, in denying his motion for a mistrial, and in denying his motion to suppress his statements to police. Because we find no errors requiring reversal, Church's convictions are affirmed.

FACTS

In 2016, V.R. told her soon-to-be adoptive father S.D. that she needed to tell him a secret; she was 10 years old at the time. V.R. told S.D. that a man she knew as "Zero" was babysitting her when she woke up to him naked in her bed and under the covers with her. Specifically, V.R. explained that she fell asleep watching television and when she awoke to something touching her, she lifted her covers to find Zero in her bed and naked. This event was alleged to have occurred between October 2012 and January 2013 when V.R. was only six or seven years old. Knowing Zero was the nickname for Church, one of V.R.'s biological mother's friends, S.D. relayed the information to his wife before also reporting it to the police.

After the report, police began investigating the incident. As a part of the investigation, police interviewed V.R., Church, and Church's wife Shirley McCabe. The investigation yielded no physical evidence of the crime.

During Church's interview with police, he initially denied the allegation against him but eventually confessed to having various sexual contacts with V.R. Specifically, Church confessed to penetrating V.R.'s vagina with his penis and to having V.R. fondle his penis with her hand. Church told police that the sexual contact occurred at his home when V.R. was approximately six or seven years old. V.R. gave a similar explanation of the events but added that Church also put his penis in her mouth.

As a result of the investigation, the State charged Church with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child.

At trial, Church testified that he never had sexual contact with V.R. and that he only confessed to police to stop the questioning. V.R. testified that Church did engage in various sexual acts with her but no longer thought Church put his penis in her mouth. As a result of that testimony, the State dismissed the aggravated criminal sodomy charge.

Ultimately, a jury convicted Church of the two remaining counts-rape and aggravated indecent liberties with a child. Church was sentenced to life in prison without the possibility of parole for 25 years.

Church has timely appealed his convictions. We will add additional facts in discussing the issues on appeal.

ANALYSIS

Does sufficient evidence support Church's conviction?

Church argues that there was insufficient evidence to find him guilty beyond a reasonable doubt.

The law regarding sufficiency of evidence is well settled:

" 'When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.' [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

It is only in rare cases where the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock , 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Church has numerous complaints about the evidence presented against him in this case. He maintains that because the State's case lacked physical and forensic evidence and eyewitness testimony, it was weak and did not amount to sufficient evidence. Church further contends that this is a " 'he said/she said' case in which the credibility of the parties was crucial." Church also emphasizes that there was testimony regarding his low IQ and tendency to "agree with people to avoid uncomfortable situations."

The analysis Church asks us to conduct, however, would require that we reweigh evidence and decide the credibility of the victim's testimony. But when a verdict or trial court decision is challenged for insufficiency of evidence or as being contrary to the evidence, we cannot reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal. Wolfe Electric, Inc. v. Duckworth , 293 Kan. 375, 407, 266 P.3d 516 (2011).

Here, the jury heard testimony from the victim and an admission from Church during his interview with police. That information was enough to prove the elements of both rape and aggravated indecent liberties with a child. V.R. testified that Church kissed her, penetrated her vagina with his penis, and put his penis in her hand. Church admitted to those actions. Although Church attempts to cloud the analysis with assertions regarding his low IQ, those assertions are irrelevant here. The victim's testimony and Church's confession were enough to support the jury's conviction.

Did the district court err in failing to give a no-sympathy instruction?

Church argues that the district court erred when it failed to sua sponte instruct the jury to consider the victim's testimony without sympathy. The State asserts that this case is not one of the unique cases in which the no-sympathy instruction was factually appropriate. The State furthers its argument by pointing out that there is no Kansas caselaw supporting Church's argument and that Church does not demonstrate clear error requiring reversal on this issue.

The rules surrounding our review under these circumstances are clear:

"When analyzing jury instruction issues, we follow a three-step process: '(1) determining whether the appellate court can or should review the issue, i.e. , whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e. , whether the error can be deemed harmless.' [Citation omitted.]" State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018).

Whether a party has preserved a jury instruction issue affects the appellate court's reversibility inquiry at the third step. 307 Kan. at 317 ; K.S.A. 2018 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict ... unless the instruction or the failure to give an instruction is clearly erroneous."). At the second step, appellate courts consider whether the instruction was legally and factually appropriate, using an unlimited review of the entire record. McLinn , 307 Kan. at 318.

When we apply the clear error standard at the third step because the party did not object to the jury instruction below, we will only reverse the district court if an error occurred and we are firmly convinced that the jury would have reached a different verdict if the instruction error had not occurred. The party claiming a clear error has the burden to demonstrate the necessary prejudice. McLinn , 307 Kan. at 318.

In evaluating whether an instruction rises to the level of clear error, the issue of "[r]eversibility is subject to unlimited review and is based on the entire record. It is the defendant's burden to establish clear error under K.S.A. 22-3414(3)." State v. Betancourt , 299 Kan. 131, 135, 322 P.3d 353 (2014). The clear error determination must review the impact of the erroneous instruction in light of the entire record including the other instructions, counsel's arguments, and whether the evidence is overwhelming. In re Care & Treatment of Thomas , 301 Kan. 841, 849, 348 P.3d 576 (2015).

"To establish clear error, 'the defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in the verdict.' [Citation omitted.]" State v. Cooper , 303 Kan. 764, 771, 366 P.3d 232 (2016).

Church concedes that the no-sympathy instruction was not requested before the district court. Still, Church argues that because the victim was 10 years old when she gave her testimony, was six or seven years old when she was assaulted, and while testifying held onto a stuffed animal which she described as her " 'worry eater,' " the instruction was required to ensure the jury did not give in to their prejudices or sympathies. Although the facts of V.R.'s assault in relation to her age are disturbing, they are not so unique that failure to give the instruction was clearly erroneous. After a careful review of the record, we are not convinced that the jury would have reached a different verdict if the instruction had been given.

Both parties acknowledge that the no-sympathy instruction is no longer included in the standard PIK instructions and that our Supreme Court has recognized that the instruction has been disapproved for general use. See State v. Jones , 298 Kan. 324, 338-39, 311 P.3d 1125 (2013) ; State v. Baker , 281 Kan. 997, 1004, 135 P.3d 1098 (2006). Our Supreme Court has also held that "a no-sympathy instruction is only legally appropriate in very unusual circumstances." State v. Williams , 299 Kan. 1039, 1044, 329 P.3d 420 (2014).

The State correctly notes that Church's brief has failed to provide us with a factually similar instance in which our appellate courts have granted relief on these grounds. But Church does cite State v. Rhone , 219 Kan. 542, 548 P.2d 752 (1976), in which the victim was dying from cancer when she was required to testify. In that case, the judge, jury, and defendant were required to go to the victim's house to hear her testimony. Under those unique circumstances, our Supreme Court held that the district court adequately instructed the jury that "neither prejudice nor sympathy should be allowed to influence the verdict." 219 Kan. at 545.

However, we believe Rhone has little applicability here. Constructively moving an entire courtroom to the bedside of a dying victim is such a dramatic and factually singular event, and one without precedent in our caselaw, that our Supreme Court felt the unique circumstances were best left to the trial court's discretion. There are fact patterns in other Kansas cases which are more similar to ours.

The State cites Baker , 281 Kan. 997 ; State v. Holmes , 278 Kan. 603, 102 P.3d 406 (2004) ; and State v. Reser , 244 Kan. 306, 767 P.2d 1277 (1989), to argue that this case did not warrant the instruction. In Baker , our Supreme Court held that the no-sympathy instruction was not warranted in a case with evidence that a murder victim was paraplegic and suffered from extreme pain and physical weakness when he was killed. 281 Kan. at 1005. Our Supreme Court made a similar holding in Holmes where the family members of a murder victim began crying and were escorted out of the courtroom. 278 Kan. at 635-36. Finally, in a case involving facts more closely analogous with the crime committed here, our Supreme Court held that there were no unusual circumstances requiring the no-sympathy instruction where a 14-year-old was testifying against her stepfather for rape and sodomy. Reser , 244 Kan. at 317. These cases illustrate that the circumstances of this case are not so unusual that a no-sympathy instruction was required to curb the sympathies and prejudices of the jury.

To find that this case presents a sufficiently unique factual scenario warranting use of the no-sympathy instruction would ignore the regularity of this awful but prevalent situation. Because of this, we are not persuaded by Church's request for a new trial on these grounds. In short, we find no clear error by the district court in not giving a no-sympathy instruction sua sponte.

Did the district court err in denying Church's motion for a mistrial?

Church argues that the district court erred in denying his requests for a mistrial after the jury heard evidence implying that he had a criminal history and after a juror reportedly used his or her cell phone during the trial.

Although Church attempts to refute the applicable standard of review, the law surrounding the district court's decision here is well settled. We review the district court's application of the two-step process provided in K.S.A. 22-3423(1)(c) for mistrials under an abuse of discretion standard. Judicial discretion is abused if the judicial decision: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Moyer , 306 Kan. 342, 355-56, 410 P.3d 71 (2017).

In evaluating a motion for mistrial under K.S.A. 22-3423(1)(c), the district court must first decide if there is prejudicial conduct, inside or outside of the courtroom, resulting in a fundamental failure in the proceeding. If so, the district court must next decide whether the conduct makes it impossible to continue the trial without injustice or whether the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. Moyer , 306 Kan. at 356 ; see State v. Sherman , 305 Kan. 88, 118-19, 378 P.3d 1060 (2016).

To determine whether an error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party's substantial rights under the harmless error statutes, K.S.A. 2018 Supp. 60-261 and K.S.A. 60-2105, if a right guaranteed by the United States Constitution is not implicated; but if a constitutional right is implicated, the error must be assessed under the constitutional harmless error standard in Chapman v. California , 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Logsdon , 304 Kan. 3, 39, 371 P.3d 836 (2016).

The first instance of alleged prejudicial activity at trial occurred when the State was questioning Detective Derek Purcell, the lead detective in this case. The State inquired how Purcell first contacted Church after V.R.'s account was reported to the police. Purcell responded, "[V.R.] would refer to Steven as Zero so I started checking police department records looking for the identifying information she had given to find someone that matched that description. That was how I came up with Steven Church." The State then asked what form of communication the detective used to contact Church and if a meeting with him was scheduled. It was at this point that Church's counsel objected to the State's use of the police records on the basis that they violated a pretrial motion in limine. The district court had previously granted Church's oral motion in limine and in a handwritten minute order had barred admission of "information re [Church's] prior bad acts or convictions." Church also moved for a mistrial. The district court denied Church's request after finding that the detective "did not mention any sort of criminal conviction or any sort of criminal history or anything like that.... It did not in my eyes violate the order in limine."

The second occasion of alleged prejudice Church complains about came soon after the first. The State showed the jury the video recording of Church's interview with Detective Purcell. In the video, Purcell mentioned Church's previous mug shots. Church objected again, arguing that the discussion regarding mug shots also violated the district court's order in limine because it implied that Church had a prior criminal history. Church again requested a mistrial. The district court agreed with Church that the reference to the mug shots violated the order in limine but held that the reference did not merit a mistrial. The district court also noted that Church's counsel admittedly had reviewed the video before trial but did not object to the video after doing so. Before proceeding, however, the district court reviewed the remainder of the video to ensure that no other prejudicial material was contained in it. After reviewing it, the parties agreed that five additional redactions were required. Those redactions were made before the jury viewed the remainder of the video.

Finally, during the trial Church objected to a juror's conduct but ultimately did not request a mistrial based on the juror's action. Church's counsel was apparently notified that a juror was texting while evidence was being presented. Church notified the district court but only requested that the jurors be admonished. The court agreed and addressed the jury as a whole, reminding them that cell phones usage of any kind was not permitted during trial.

Church argues that each of these instances required the district court to declare a mistrial because the evidence was overly prejudicial. Church further argues that the juror misconduct impeded his constitutional right to a fair trial. In response, the State asserts that we should deny Church's claim here because he waited until two additional questions were asked before making an objection to the evidence. Thus, according to the State, Church failed to make a timely objection. The State also suggests that Church's arguments are nothing more than unsupported, conclusory statements that also lack merit. But even if we disregard the timeliness of Church's objection, as noted below, we have ultimately concluded that the evidence does not support Church's assertion that the district court abused its discretion in denying his requests for a mistrial.

The State cites two significant cases in support of the district court's decision not to declare a mistrial, State v. Trotter , 245 Kan. 657, 783 P.2d 1271 (1989), and State v. Childs , 198 Kan. 4, 422 P.2d 898 (1967). In Trotter , our Supreme Court addressed the State's reference to mugshots and held that the issue of prejudice must be decided on a case-by-case basis. 249 Kan. at 662. In Trotter , a detective testified regarding the manner in which his photograph lineup identifying the defendant was compiled. The detective testified that mug shots from the bureau's identification system were used to find the defendant's photo. Our Supreme Court held that "the reference to 'mug shots' was brief and not sufficiently prejudicial to warrant a mistrial." 245 Kan. at 662. Likewise, in Childs , our Supreme Court held that a witness' reference to the defendant's mug shots was not reversible error. Instead, the court held that the proper remedy for the defendant was to move to strike. 198 Kan. at 12.

Just as in Trotter and Childs , the references to Church's arrest record and mug shots were also very short. Here, the jury only was briefly notified that Detective Purcell identified Church using police reports. Although the jury also heard a reference to mug shots in Church's interview with police, these were brief instances and were quickly identified and resolved. But we also are mindful that we need to exercise great care before concluding that there was no abuse of discretion by the district court in denying a mistrial.

Our Supreme Court has warned against giving blanket approval of similar situations in Childs :

"We specifically condemn the tactics often employed by overzealous witnesses of injecting clearly incompetent testimony, not otherwise admissible, which implies the accused has a prior criminal record, in an obvious effort to create prejudice in the minds of the jury. Decisions in which the admission of such testimony has been held not to have resulted in prejudicial error must be confined to the specific facts of each case rather than an indication of carte blanche approval of the practice." 198 Kan. at 12.

Still, Church's argument here is ultimately unpersuasive to us. The district court responded quickly and appropriately in dealing with all three of the instances where potentially prejudicial conduct occurred. We cannot find that any of these alleged lapses during the trial amounted to a fundamental failure in the proceeding. And in our opinion the district court's prompt actions in response to defense objections certainly mitigated any damaging effects resulting from the violation of pretrial orders in limine. Based upon our conclusions, Church has failed to establish an abuse of discretion on the part of the district court in denying various defense motions for mistrial.

As a final note, we believe Church's argument regarding the alleged juror misconduct is misplaced and is also unpersuasive. The State correctly notes that Church requested that the juror be admonished for his or her actions. Requiring reversal here would ignore that Church invited the alleged error. Once again, Church has failed to show how the district court's decision was an abuse of discretion.

Did the district court err in denying Church's motion to suppress?

In his final issue on appeal, Church argues that the district court erred in denying his motion to suppress his statements to Purcell.

A dual standard is used when reviewing a district court's ruling on a motion to suppress a confession. First, we review the factual underpinnings of the decision under a substantial competent evidence standard. Second, the ultimate legal conclusion drawn from those facts is reviewed de novo. In this process we do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Dern , 303 Kan. 384, 392, 362 P.3d 566 (2015).

Church argues that he was not subjected to overt coercion but that his statements were nevertheless involuntary. Church's argument is mostly grounded on testimony given by his wife regarding his mental capacity and how it affected his ability to answer the detective's questions without coercion. In this regard, Church claims that his

"free will was overborne by a combination of the nature of the detention and interrogation along with the fact that [Church] suffers from certain learning disabilities and was unable to read beyond a rudimentary level ..., had difficulty comprehending certain concepts, gets confused easily ... and had a tendency to simply agree with people in stressful circumstances."

The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence-that the statement was the product of the defendant's free and independent will. Dern , 303 Kan. at 392. In determining the issue, the district court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request 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. Woods , 301 Kan. 852, 867, 348 P.3d 583 (2015) ; see Dern , 303 Kan. at 392.

" 'These factors are not to be weighed against one another with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act.' [Citation omitted.]" State v. Mattox , 305 Kan. 1015, 1043, 390 P.3d 514 (2017).

Before trial, Church filed a motion to suppress, arguing his statements to law enforcement were coerced and involuntary. Church's motion hinged on his low intellect and his inability to read, write, or do math at more than an elementary level. The district court held an evidentiary hearing on the matter.

Only Detective Purcell and McCabe testified at the hearing on the motion to suppress. Purcell testified that he set up an interview with Church and McCabe. They arrived on the same date and at the same time. He asked that Church wait in one of the interviewing rooms while he questioned McCabe first. Purcell testified that the door to the interview room where Church was waiting was locked but that he told Church to simply knock if he needed anything. According to Purcell, Church waited about 50 minutes to an hour in the locked interview room before his interview began and that he was in the interview room for a total of six hours. Purcell estimated that only three of the six hours were used to actually question Church about the allegations against him. Purcell further testified that Church was not handcuffed or shackled during his interview and that Church seemingly followed and understood the conversation.

McCabe testified that Church could not read or write and was "easily confused when asked questions." McCabe further testified that Church had an extreme learning disability but gave contradictory testimony as to whether Church had ever been formally diagnosed.

McCabe also called Church's ability to comprehend information into question before Church was interviewed by Purcell. In fact, she told Purcell that Church could not read or write. Knowing this, Purcell offered to read through Church's Miranda rights as he followed along. Church agreed and seemingly followed through the discussion of his rights with Purcell's direction. Church indicated he understood those rights and asked no questions before continuing to speak with Purcell.

While speaking with Purcell, Church initially denied ever touching V.R. inappropriately. However, Church eventually confessed to having sexual contact with V.R. As a result, Church was arrested after the interview was over.

After reviewing the video of Church's interview and the arguments and evidence presented at the hearing, the district court made its ruling. The district court found that Church appeared to be sober and that he "respond[ed] appropriately to the detective's questions." The district court also further stated:

"There is some evidence that Mr. Church is illiterate and that he can perhaps read and write at a very primitive level and there is some evidence of a learning disability. That evidence was provided by his wife.
....
"While I realize that he may have a learning disability, I don't know the extent of that learning disability. So all I have to go on is the evidence that I've seen on the interview and the video and what's been explained by the people who have testified here in court.
"In the interview Mr. Church did not appear confused. He did not appear to be unable to track the detective's questions. He did not respond repeatedly with I don't understand or that doesn't make any sense or I can't follow the questions.
"If one watches the interview, he appears simply to be in a discussion with the detective. So my evaluation of his mental condition, while he may suffer from some learning disability, that he was able to participate adequately in the interview and answer the questions appropriately."

The district court also noted that the six-hour interview was lengthy but that the extended amount of time was in part due to the need to question Church's wife first. The district court further found that Purcell "did not make any threats, promises or deceive [Church] in any way." Based on this evidence, the district court found that the State met its burden of proving Church's statements were made knowingly and voluntarily and were of his own free will.

Viewing the totality of the circumstances here, we are convinced that the district court properly denied Church's motion. Although McCabe testified that Church was mentally disabled, no documentation was submitted to confirm her testimony. While it is correct that Church was locked in an interview room for six hours, he was offered water and bathroom breaks, and he did take one bathroom break. Additionally, only three of those hours were actually used to question Church.

Church was 33 years old at the time of his interview. He was read his Miranda rights and did not make any indication that he did not understand those rights. Detective Purcell testified that Church seemingly tracked the conversation and gave "rational responses ... appropriate to the questions [being asked]." After reviewing the video, the district court agreed with Purcell and found that Church understood the questions and answered appropriately. Our review of the video confirms the soundness of that finding.

The State cites State v. Walker , 283 Kan. 587, 153 P.3d 1257 (2007), to support its argument that the district court properly denied Church's motion to suppress. In Walker , our Supreme Court affirmed the district court's decision to allow the defendant's confession into evidence despite the fact that the defendant was in the interview room for almost 13 hours and confessed after 8 hours of questioning. 283 Kan. at 597, 603. The State simply compares that time to the time frames relevant here in arguing that the confession was voluntarily given. This comparison is somewhat applicable but does little to actually assist our review of the issue presented. On the other hand, Church's brief does not provide us with any factually similar cases and also does not address the majority of the applicable factors for this analysis.

We note that our Supreme Court conducted a similar factual analysis in State v. Woods , 301 Kan. 852, 348 P.3d 583 (2015). In Woods , a defendant on trial for murder argued that his statements to police were involuntary because he was in the interview room for six hours, had an IQ in the mild mental retardation range, wrongly believed he had to speak with police to get information about his wife and children, and had previously been diagnosed with schizophrenia. Our Supreme Court held that the defendant's inculpatory statements were voluntarily given after noting that the defendant's actual interview lasted only about 90 minutes; the defendant told police he had graduated from high school; and the defendant seemingly understood the questions as they were posed and answered them appropriately. 301 Kan. at 867-68. Woods bears a significant factual resemblance to the circumstances of Church's interview.

Ultimately, we believe that no one individual factor, standing alone, suggests that Church's free will was overcome. Moreover, Church is required to "show he was coerced into confession." Woods , 301 Kan. at 868 ; see Colorado v. Connelly , 479 U.S. 157, 163-65, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (low intellect not basis for finding statement involuntary if no coercion). We believe he has not met his burden to show such coercion. Under the totality of the circumstances of the interview, we hold that Church's statements were a product of his own free and independent will. Thus, the district court did not err in denying the motion to suppress Church's statements during his interview with Detective Purcell.

Affirmed.