author: BRODY, Justice.

text:
    REGDAB, INC., an Idaho corporation, Plaintiff-Respondent, v. Buck GRAYBILL and Laurie Graybill, husband and wife, and the marital community comprised thereof, Defendants-Appellants, and Borges, LLC, an Idaho Limited Liability Company; Christopher B. Borges and Annette E. Borges, husband and wife, and the marital community comprised thereof; Patrick N. Ferrick and Natalia I. Makeeva, husband and wife, and the marital community comprised thereof; and Quicken Loans, Inc., a foreign corporation, Defendants.
    Docket No. 45649
    Supreme Court of Idaho, Boise, April 2019 Term.
    Filed: June 13, 2019 Petition for Rehearing Filed July 2, 2019 Petition for Rehearing Dismissed July 17, 2019
    Bistline Law, PLLC, Coeur d'Alene, for appellants.
    Stamper Rubens, P.S., Spokane, Washington, for respondent.
    SUBMITTED ON THE BRIEFS
   BRODY, Justice.

Buck and Laurie Graybill (collectively, "Graybill") appeal an award of attorney fees to Regdab, Inc., following entry of a default judgment against them in an action to foreclose on a mechanic's lien. Graybill objected to the award of attorney fees and costs because Regdab failed to plead in its complaint a specific dollar amount for attorney fees in the event of default as required by Idaho Rule of Procedure 54(e)(4)(B). The district court ruled that the Rule 54(e)(4)(B) pleading requirement was inconsistent with Idaho Code section 45-513, the provision which mandates an award of certain costs and reasonable attorney fees in mechanic's lien foreclosure actions. The district court then granted Regdab's motion for default judgment and awarded the principal amount owed on the mechanic's lien plus $ 8,134.62 in attorney fees and costs. Graybill timely appealed.

We agree with Graybill that Regdab was required to plead a specific amount of attorney fees to be awarded in the event of default. Since Idaho Code section 45-513 does not contain any language specifying how fees are to be determined, imposing the Rule 54 pleading requirement is not inconsistent with the mandatory award language. We also reject Regdab's invitation to affirm the district court's decision on alternative grounds. Regdab contends that it filed a motion to amend its complaint to address the pleading deficiency and that the motion would have been granted by the district court if it had denied the award of fees. Regdab contends that Graybill would not have been prejudiced by an amendment. We disagree. Graybill relied on the complaint and its failure to contain a specific amount for attorney fees in making the decision not to defend the suit and actually tendered payment in full before the default judgment was entered. Accordingly, we vacate the default judgment and remand this case with instruction to enter a default judgment consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Regdab, Inc., operates a building supply business known as Badger Building Center.

In the fall of 2016, Badger sold Borges, LLC, building materials to improve four residential properties in Sagle, Idaho, including materials valued at $ 5,252.99 to improve the Graybill property. Regdab also recorded mechanic's liens against each property. After Borges failed to make payments as required, Regdab filed this action against Borges and the four property owners, alleging breach of contract, unjust enrichment, and lien foreclosure. In its prayer for relief, Regdab requested entry of a money judgment against each defendant, including the principal amount owed, interest, "and for attorneys' fees and costs incurred in this litigation pursuant to Idaho Code § 12-120, Idaho Code § 12-121, Idaho Code § 45-513, and I.R.C.P. 54(e)." The complaint did not specify the amount of attorney fees to be awarded in the event of default.

No party filed an answer and the district court granted Regdab's motion for default. Most of the defendants later settled with Regdab. When Regdab moved for entry of default judgment, Graybill responded by filing a motion to disallow the proposed award of attorney fees, arguing that Regdab failed to plead a specific dollar amount in its complaint as required by Idaho Rule of Procedure 54(e)(4)(B). Graybill also sent a check to Regdab for the principal amount owed plus costs (the filing fee, service of process, and the title report), to which no objection was made. Regdab refused payment and returned the check to Graybill's counsel.

Regdab then filed a motion to amend its original complaint to include a specific dollar amount if a default judgment was entered. The district court denied this motion. It also denied Graybill's motion to disallow costs, ultimately concluding that Rule 54(e)(4)(B) was inconsistent with Idaho Code section 45-513, which mandates an award of certain costs and reasonable attorney fees in lien foreclosure actions. The district court granted Regdab's motion for default judgment and awarded a total of $ 8,134.62 in attorney fees and costs. The total judgment award amounted to $ 13,941.45. The district court also entered an order for the sale of the Graybill property. Graybill timely appealed to this Court, resulting in an Order for the Stay of Execution Pending Appeal that halted the sheriff's sale.

II. STANDARD OF REVIEW

This Court exercises free review over the application of procedural rules. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012). This Court also freely reviews questions of law. Campbell v. Parkway Surgery Ctr., LLC, 158 Idaho 957, 961, 354 P.3d 1172, 1176 (2015).

III. ANALYSIS

A. The district court incorrectly determined that Idaho Rule of Civil Procedure 54(e) was inconsistent with Idaho Code section 45-513.

The primary inquiry in this case is whether Idaho Rule of Civil Procedure 54(e)(4)(B) required Regdab to plead a specific dollar amount in the complaint's request for attorney fees in the event of default when the award was based on Idaho Code section 45-513. The district court determined that Rule 54(e)(4)(B) did not apply because it is inconsistent with Idaho Code section 45-513 's mandatory award of attorney fees. We disagree.

In default judgment cases, the Idaho Rules of Civil Procedure require a specific amount to be plead in the event of default:

When attorney fees are requested pursuant to contract or a statute other than Idaho Code section 12-121 in a judgment by default, the amount of attorney fees in the event of default must be included in the prayer for relief in the complaint and the award must not exceed the amount in the prayer. An award of attorney fees under Idaho Code section 12-120 in default judgments where the defendant has not appeared must not exceed the amount of the judgment for the claim, exclusive of costs.

I.R.C.P. 54(e)(4)(B) (emphasis added). This Court has explained that requiring the default amount to be plead puts the defendant "on notice of its full potential liability should it decide not to defend the lawsuit."

Magleby v. Garn, 154 Idaho 194, 197, 296 P.3d 400, 403 (2013). Id. This rule is generally consistent with Idaho statutes that authorize or mandate an award of attorney fees but do not provide a means for determining those fees. See Bailey v. Bailey, 153 Idaho 526, 531, 284 P.3d 970, 975 (2012) (holding "[t]he statute provides the authority for the award of fees, and Rule 54(e) is not inconsistent with Idaho Code § 15-3-720 because the statute does not provide a means of determining a reasonable amount of fees.").

Idaho Code section 45-513 states:

Any number of persons claiming liens against the same property may join in the same action, and when separate actions are commenced the court may consolidate them. The court shall also allow as part of the costs the moneys paid for filing and recording the claim, and reasonable attorney's fees.

I.C. § 45-513. This statute "provides for the award of costs and reasonable attorney fees in the foreclosure of materialman's liens." Magleby, 154 Idaho at 199, 296 P.3d at 405 (quoting Franklin Bldg. Supply Co. v. Sumpter, 139 Idaho 846, 852, 87 P.3d 955, 961 (2004) ). Because "the costs of filing and recording, as well as the attorney fees, are incidental to the foreclosure of a lien pursuant to I.C. § 45-513, the award of attorney fees as part of the enforcement of the lien is a mandatory award." Credit Suisse AG v. Teufel Nursery, Inc., 156 Idaho 189, 203, 321 P.3d 739, 753 (2014) (quoting Elec. Wholesale Supply Co., Inc. v. Nielson, 136 Idaho 814, 823-24, 41 P.3d 242, 251-52 (2001) ). However, Idaho Code section 45-513 does not provide a means of determining a reasonable amount of attorney fees. The determination of attorney fees is still governed by Idaho Rule of Civil Procedure 54(e)(4)(B), which requires the amount of attorney fees sought in the event of default to be pled with specificity. These procedural requirements must be complied with to receive an award of attorney fees. See Bailey, 153 Idaho at 531, 284 P.3d at 975 ; I.R.C.P. 54(e)(4)(B).

Regdab compares its situation to that discussed in Magleby v. Garn, arguing that Graybill's participation in the litigation-namely, their consistent objection to the attorney's fees and costs-made it impossible to assign a number to the requested attorney fees to be entered in the event of default. Regdab's situation, however, is inapposite to Magleby. There are two situations in which Rule 54(e)(4) may be implicated: first, where the defendant does not appear or defend; second, where the defendant appears and defends-inevitably racking up attorney fees-but the district court eventually enters default judgment. Magleby, 154 Idaho at 197, 296 P.3d at 403. In the latter cases, a plaintiff is unable to "meaningfully assign a number to the requested attorney fees to be entered in the event of default, as the amount ... is necessarily dependent upon future, unknown events." Id. Thus, the plaintiff should plead a specific and reasonable amount of attorney fees in its complaint in the event of default pursuant to Rule 54(e)(4)(B) and plead a general amount of reasonable attorney fees incurred in the event of litigation. See id. at 197-98, 296 P.3d at 403-04. For example, in Magleby, the plaintiff's complaint specified that they "requested $ 2,500 in attorney fees in the event the defendants did not contest their lawsuit and they requested the actual amount of attorney fees incurred in the event that the defendants elected to defend against the lawsuit." Id. This appropriate and careful pleading comported with Rule 54(e) 's language and underlying purpose of "notifying the defendants of the extent of their potential liability for attorney fees." Id. at 198, 296 P.3d at 404. Not only did Regdab fail to plead in compliance with Rule 54(e)(4)(B), but it rejected Graybill's payment and escalated litigation costs as it pursued attorney fees against Graybill.

Regdab also argues that even if Rule 54(e)(4)(B) applies to Regdab's claim for attorney fees, the recent amendments suggest that a specific dollar amount is no longer required. We disagree. In 2012, when this Court decided Magleby, Rule 54(e)(4) stated attorney fees "shall not be awarded unless the prayer for relief in the complaint states that the party is seeking attorney fees and the dollar amount thereof in the case judgment is entered by default." Id. at 197, 296 P.3d at 403 (emphasis added). Now the rule states: "When attorney fees are requested pursuant to contract or a statute other than Idaho Code section 12-121 in a judgment by default, the amount of attorney fees in the event of default must be included in the prayer for relief in the complaint and the award must not exceed the amount in the prayer." I.R.C.P. 54(e)(4)(B) (emphasis added). The rule's language still requires listing the "amount of attorney fees" in the complaint. "Amount" means "the total number or quantity." Amount, MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (10th Ed. 1995). The plain language of "amount of attorney fees" means a numerical value, not simply a request for attorney fees in general.

Regdab also urges us to affirm the district court on the basis that its motion to amend its original complaint to cure the procedural deficiency would have been granted had fees not been awarded, arguing that the amendment would not have prejudiced Graybill. We reject this argument. The purpose of Rule 54(e)(4)(B) is "is to put the defending party on notice of its full potential liability should it decide not to defend the lawsuit." Id. at 197, 296 P.3d at 403. Graybill apparently made a sound tactical decision to rely on the complaint and its non-compliance with Rule 54(e)(4)(B) when they chose to not defend the mechanic's-lien action. Graybill then tendered the full amount owed to Regdab, including the filing fee, service of process, and the title report costs before the district court entered a default judgment. Regdab rejected that tender and permitting an amendment to the complaint, adding a specific amount of attorney fees on default, would have prejudiced Graybill. Escalating attorney fees and costs to pursue fees that were overlooked is a practice we cannot endorse.

Ultimately, the district court incorrectly analyzed Idaho Code section 45-513 and Idaho Rules of Civil Procedure 54(e)(4) and (8) to find Regdab was entitled to an award of attorney fees. The rules are clear in their requirement and Regdab failed to comply with them.

B. Neither party is entitled to attorney fees on appeal.

Graybill requests attorney fees on appeal, arguing Regdab's defense is unreasonable and frivolous. Graybill does not cite to a specific rule, statute, or case for their claim. We have consistently held that a party claiming attorney fees "must assert the specific statute, rule, or case authority for its claim." Washington Fed. v. Hulsey, 162 Idaho 742, 749, 405 P.3d 1, 8 (2017) (citation and brackets omitted). Thus, Graybill's claim for attorney fees fails.

Regdab reminds us that Magleby expressly prohibits an award of attorney fees to any party where Idaho Code section 45-513 applies, but then proceeds to request attorney fees under Idaho Code section 12-121. Indeed, Magleby expressly bars an award of attorney fees here: " Idaho Code section 45-513 does not authorize the award of attorney fees on appeal, nor are attorney fees available on appeal under Idaho Code section 12-121 in cases where Idaho Code section 45-513 applies." Magleby, 154 Idaho at 200, 296 P.3d at 406. In addition, Regdab is not the prevailing party. Therefore, we will not award attorney fees to either party on appeal.

IV. CONCLUSION

In light of the foregoing, we vacate the default judgment and remand with instructions to enter a judgment consistent with this opinion. Costs to Graybill.

Chief Justice BURDICK, and Justices BEVAN, STEGNER, and MOELLER concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Lloyde DUBRY, Appellant.
    No. 114,050
    Supreme Court of Kansas.
    Opinion filed June 28, 2019.
    Clayton J. Perkins, of Capital Appellate Defender Office, and Joanna Labastida, of Kansas Appellate Defender Office, were on the briefs for appellant.
    Jodi Litfin, assistant solicitor general, and Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
   The opinion of the court was delivered by Biles, J.:

Lloyde Dubry moved to correct his sentence several years after it was imposed, arguing the sentencing court improperly scored a prior Wyoming conviction as a person crime. The sole issue is whether the Court of Appeals erred in affirming the district court's denial of the motion on the basis that the Wyoming offense's classification was correct. We affirm based on State v. Murdock , 309 Kan. 585, Syl., 439 P.3d 307 (2019) ( Murdock II ) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes). FACTUAL AND PROCEDURAL BACKGROUND

Dubry pleaded guilty to kidnapping, a severity level 3 felony. The State alleged the crime occurred on December 6, 2010. The district court accepted the plea and adjudged him guilty. He was sentenced on March 30, 2011.

Dubry's presentence investigation report reflected three prior convictions and recommended that each be scored as a person felony. These were: a pre-1993 Kansas aggravated criminal sodomy conviction; a pre-1993 Kansas aggravated kidnapping conviction; and a 1981 Wyoming conviction for immodest, immoral, or indecent liberties with a child. Based on this, the PSI report recommended an A criminal history score. Defense counsel did not object. Applying the A criminal history score, the district court sentenced Dubry to 233 months' imprisonment.

In 2015, Dubry filed a motion to correct his sentence arguing the prior convictions should have been scored as nonperson offenses since they predated the KSGA, relying on State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 (2014) ( Murdock I ) (prior out-of-state conviction to be compared to Kansas law in effect at time of prior conviction to determine whether prior conviction scored as person or nonperson offense, resulting "in the classification of all out-of-state pre-1993 crimes as nonperson felonies"), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). The district court denied the motion and Dubry timely appealed.

On appeal, Dubry shifted his illegal sentence argument and claimed only that the Wyoming conviction should not have been scored as a person crime because the Wyoming statute is broader than the counterpart Kansas offense. He contended the Wyoming and Kansas offenses could not be deemed comparable without judicial factfinding that violated his Sixth and Fourteenth Amendment rights under the United States Constitution. See Descamps v. United States , 570 U.S. 254, 260-61, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (holding prior conviction can qualify as predicate offense for sentencing enhancement under federal Armed Career Criminal Act only if offense's elements are identical to or narrower than elements of generic offense); Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (holding facts that increase maximum penalty for crime, other than prior convictions, must be submitted to jury and proved beyond a reasonable doubt).

A Court of Appeals panel affirmed, holding the Wyoming conviction was appropriately classified as a person crime. State v. Dubry , No. 114,050, 2016 WL 4498520, at *5 (Kan. App. 2016) (unpublished opinion). In the panel's view, the "core conduct outlawed" in the Wyoming statute was the same as that declared to be a person offense in Kansas' indecent liberties with a child statute. 2016 WL 4498520, at *3, 379 P.3d 1129. It reasoned that in making the person-crime designation, a sentencing court must "compar[e] the prior-conviction statute to the 'comparable offense' in effect in Kansas on the date the current crime was committed. K.S.A. 2015 Supp. 21-6811(e)(3). 'To be comparable, the crimes need only be comparable, not identical.' " 2016 WL 4498520, at *2. Moreover, it reasoned,

"under [ State v. Vandervort , 276 Kan. 164, 72 P.3d 925 (2003) ] and [ State v. Williams , 299 Kan. 870, 326 P.3d 1070 (2014) ], which remain good law, when a Kansas court determines whether a prior out-of-state conviction is for a person offense, no factfinding is required-the court simply examines the relevant statutes and determines whether the crime is comparable to a Kansas offense or not." 2016 WL 4498520, at *5.

We granted Dubry's timely petition for review and ordered the parties to explain whether we should summarily vacate the panel's decision and remand to the district court in light of State v. Wetrich , 307 Kan. 552, 561, 412 P.3d 984 (2018) (holding that to be "comparable" under 21-6811, "the out-of-state crime cannot have broader elements than the Kansas reference offense"). Dubry argues Wetrich should apply.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

DISCUSSION

A criminal sentence's legality is judged by the law at the time it was pronounced. Murdock II , 309 Kan. at 591, 439 P.3d 307. When Dubry was sentenced, prior out-of-state crimes did not need to be identical to their Kansas counterparts to be classified as person crimes. See State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003).

At the time of Dubry's offense, the KSGA provided:

"Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime. Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence." (Emphasis added.) K.S.A. 21-4711(e).

Under the Wyoming statute forming the basis of Dubry's 1981 conviction, Wyo. Stat. Ann. § 14-3-105 (1978):

"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both."

At the time of Dubry's current crime, Kansas' indecent liberties statute provided:

"(a) Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
(1) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
(2) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.
"(b) It shall be a defense to a prosecution of indecent liberties with a child as described in subsection (a)(1) that the child was married to the accused at the time of the offense.
"(c) Indecent liberties with a child is a severity level 5, person felony." K.S.A. 21-3503.

Dubry's argument is that the person-crime classification based on the Wyoming statute's similarities to the Kansas statute was improper because the Wyoming statute "criminalizes a broader (and nearly undefined) range of conduct than any Kansas offense, including acts that would be legal in Kansas." But under Vandervort , this argument would be unavailing. See Vandervort , 276 Kan. at 179, 72 P.3d 925 (rejecting argument that Virginia crime that lacked nonconsent element required to be guilty of Kansas person offense rendered crimes incomparable). Any viability to Dubry's argument turns on whether the new rule announced in Wetrich applies to his sentence. But we have determined already that it does not apply. See State v. Newton , 309 Kan. ----, ----, 442 P.3d 489, 2019 WL 2399484, at *3 (No. 116,098, filed June 7, 2019) (holding defendant sentenced before Wetrich could not rely on Wetrich in motion to correct an illegal sentence); see also State v. Weber , 309 Kan. ----, ---- - ----, 442 P.3d 1044, 2019 WL 2479316, at *4-5 (No. 113,472, filed June 14, 2019) (holding motion to correct a sentence that was imposed before Wetrich decision was governed by the law in effect at time of sentence).

"[F]or purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." Murdock II , 309 Kan. at 591, 439 P.3d 307. In Weber , we held:

" Wetrich was a change in the law as contemplated by Murdock II . See Murdock II , 309 Kan. at 592 [439 P.3d 307] ('[T]rue changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced.'). Before Wetrich, no Kansas case construed the term 'comparable' as used in K.S.A. 2018 Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-narrower requirement. Vandervort rejected such a construction when it reviewed a defendant's claim that an out-of-state offense and a Kansas offense could not be comparable since the out-of-state offense was broader, i.e., did not contain a lack-of-consent element required to commit the Kansas crime. See 276 Kan. at 178-79 [72 P.3d 925] ('Vandervort confuses the term 'comparable' with the concept of identical elements of the crime.'). Wetrich substituted the statute's new interpretation for the old one. 307 Kan. at 562 [412 P.3d 984]" Weber , 2019 WL 2479316, at *4.

The legality of a sentence under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. Therefore, a sentence that was legal when pronounced does not become illegal if the law subsequently changes. Since Wetrich announced a change in the law and Dubry was sentenced before Wetrich was decided, Murdock II bars Wetrich 's application to Dubry's motion to correct his sentence.

Affirmed.


author: The opinion of the court was delivered by Biles, J.: Johnson, J., concurring in part and dissenting in part:

text:
    STATE of Kansas, Appellee, v. Christopher OBREGON, Appellant.
    No. 117,422
    Supreme Court of Kansas.
    Opinion filed June 28, 2019.
    Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
    Jason B. Oxford, assistant county attorney, argued the cause, and Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   The opinion of the court was delivered by Biles, J.:

Christopher Obregon appeals his sentence after pleading no contest to drug offenses. He challenges whether a prior Florida battery conviction should be classified as a person felony. Obregon also disagrees with the Court of Appeals decision to remand his case for a jury trial on whether a firearm sentence enhancement is appropriate. We affirm in part, reverse in part, vacate sentences, and remand to the district court with directions.

We vacate Obregon's sentence and order the district court to reconsider the Florida conviction's person-crime classification. This is necessary because there were two alternative means of committing the Florida offense, and it is unclear which provided the basis for conviction. This may be significant because one version of the Florida offense lacks a comparable Kansas person offense, so it would not support the person-crime classification the district court gave it. See State v. Wetrich , 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). We also order that Obregon's resentencing proceed without the firearm enhancement. The panel's remand for a jury finding is contrary to our state's general rule against special verdicts in criminal cases.

FACTUAL AND PROCEDURAL BACKGROUND

Obregon pleaded no contest to one count each of marijuana possession with intent to distribute and cocaine possession with intent to distribute. These offenses occurred in May 2016. In exchange, the State dismissed 18 other drug charges.

Under K.S.A. 2018 Supp. 21-6805(g)(1), "if the trier of fact makes a finding that an offender ... in the furtherance of a drug felony, possessed a firearm, ... the offender shall be sentenced to: (A) ... an additional 6 months' imprisonment." In its complaint, the State alleged both counts Obregon pleaded to carry the statutory enhancement. The plea agreement provided for the enhancement.

The district court accepted Obregon's no contest pleas, found him guilty of both offenses, and applied the enhancement.

Obregon's presentence investigation report recommended a B criminal history score. It listed four prior convictions, including a 2012 Florida battery conviction, which the PSI report recommended be scored as a person felony. Obregon would have had a criminal history score of C if the Florida battery was scored as a nonperson felony. See K.S.A. 2018 Supp. 21-6809 (criminal history categories in scale).

Florida's battery statute contains two ways to commit the offense. One is identical to a Kansas battery, but the other is broader. See Fla. Stat. § 784.03(1)(a) (2009). The PSI report did not show which version in the Florida statute Obregon was convicted of violating. He did not object to his criminal history at sentencing.

The district court denied a downward dispositional departure motion and sentenced Obregon to 79 months' imprisonment for cocaine possession and to a concurrent 55-months' prison term for the marijuana possession. Obregon timely appealed.

A Court of Appeals panel concluded the district court properly calculated Obregon's criminal history score. State v. Obregon , No. 117,422, 2018 WL 911215, at *3 (Kan. App. 2018) (unpublished opinion). But it also held Obregon invalidly waived his right to jury trial on the firearm enhancement. 2018 WL 911215, at *3. The panel vacated the enhancement and remanded to the district court either for Obregon to properly waive his jury trial right or for a jury to make the factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. 2018 WL 911215, at *3.

Obregon timely petitioned for review of the panel's decision, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

THE FLORIDA BATTERY CONVICTION

To be scored as a person crime, a prior out-of-state conviction must have elements identical to or narrower than a Kansas person crime. Wetrich , 307 Kan. at 562, 412 P.3d 984. Obregon challenges whether the district court properly scored his Florida conviction as a person crime without knowing which version of the Florida crime he committed.

Standard of review

Classification of prior offenses for criminal history purposes involves statutory interpretation, which is a question of law subject to unlimited review.

Wetrich , 307 Kan. at 555, 412 P.3d 984 (applying unlimited review standard to whether prior out-of-state conviction should be classified as person felony).

Discussion

Under the revised Kansas Sentencing Guidelines Act:

"(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.
"(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:
....
"(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime. " (Emphasis added.) K.S.A. 2015 Supp. 21-6811(e).

At the time Obregon's sentence was pronounced, our caselaw construed K.S.A. 2015 Supp. 21-6811(e) (formerly K.S.A. 21-4711 [e] ) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003). "[T]he comparable offense" was "the closest approximation to" the out-of- state crime. 276 Kan. at 179, 72 P.3d 925. But Obregon seeks the benefit of Wetrich , which announced a different interpretation on March 9, 2018-more than a year after Obregon was sentenced, and a month after the Court of Appeals decision rejecting his criminal-history-score challenge. See Obregon , 2018 WL 911215, at *1 (opinion filed February 16, 2018).

Our recent caselaw supports Obregon. In State v. Murdock , 309 Kan. 585, 591-92, 439 P.3d 307 (2019) ( Murdock II ), we held that "a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced." See also State v. Newton , 309 Kan. ----, 442 P.3d 489, 2019 WL 2399484, at *3 (No. 116,098, filed June 7, 2019) (holding defendant sentenced before Wetrich could not rely on Wetrich in motion to correct an illegal sentence); State v. Keel , 302 Kan. 560, 562, 357 P.3d 251 (2015) (reaching merits of defendant's sentencing challenge relying on State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 [2014] [ Murdock I ], when defendant "filed a motion with [the Supreme] [C]ourt to correct an illegal sentence" after review was granted in his direct appeal). Accordingly, we apply Wetrich to Obregon's sentencing appeal.

The Wetrich court held:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced ." ( Emphasis added.) 307 Kan. at 562, 412 P.3d 984.

If any element in the out-of-state crime is broader than any element comprising the Kansas crime to which it is being compared, the crimes are not comparable and the out-of-state crime must be classified as a nonperson offense. 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984. In Wetrich , the court noted a Missouri burglary statute defined the structure involved to include "non-dwelling places," so this made the Missouri statute broader than the Kansas burglary-of-a-dwelling statute, which specified the structure must be a dwelling. 307 Kan. at 563-64, 412 P.3d 984. Also, the Missouri statute required a specific intent to "commit any crime," which was broader than the Kansas statute's "intent to commit a felony, theft, or sexual battery therein." 307 Kan. at 563, 412 P.3d 984.

In State v. Buell , 307 Kan. 604, 608, 412 P.3d 1004 (2018), the Kansas burglary-of-a-dwelling offense was determined not to be comparable to a Florida burglary because it could be committed " 'with the intent to commit an offense therein ,' " as opposed to Kansas' required " 'intent to commit a felony, theft or sexual battery therein.' " Similarly in State v. Moore , 307 Kan. 599, 603, 412 P.3d 965 (2018), the court held the mental state element for Oregon burglary, i.e., " 'intent to commit a crime ' " in a dwelling, was fatally broader than the Kansas element.

In Florida, "[t]he offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person." (Emphasis added.) Fla. Stat. § 784.03(1)(a). The crime is a felony when it is committed by "[a] person who has one prior conviction for battery, aggravated battery, or felony battery...." Fla. Stat. § 784.03(2). But a different offense called "Felony battery" occurs when a person "(a) Actually and intentionally touches or strikes another person against the will of the other; and (b) Causes great bodily harm, permanent disability, or permanent disfigurement." Fla. Stat. § 784.041 (2007).

In Kansas, "[b]attery is: (1) Knowingly or recklessly causing bodily harm to another person; or (2) knowingly causing physical contact with another person when done in a rude, insulting or angry manner." K.S.A. 2018 Supp. 21-5413(a). It is a person crime. K.S.A. 2018 Supp. 21-5413(g).

The State has not filed any pleading or brief since its Court of Appeals brief, which predated Wetrich , so it does not argue how the Wetrich rule applies to scoring Obregon's actual Florida offense.

Although there are two Florida offenses to consider, they are virtually identical as to mental state with both being narrower than the mental state required for the Kansas crime, so that aspect does not undermine the comparison. A Kansas battery is committed by "knowingly" or "recklessly" performing the prohibited act, but the Florida offense requires the offender act intentionally.

The problem presented comes in reviewing the prohibited conduct, which does not perfectly align between Florida and Kansas. As Obregon acknowledges, a Florida battery committed by causing bodily harm, either under Fla. Stat. § 784.03(1)(a) or Fla. Stat. § 784.041 is narrower than the K.S.A. 2015 Supp. 21-5413(a)(1) crime. But he counters that a touching "against the will of the other" is broader than the K.S.A. 2015 Supp. 21-5413(a)(2) crime because that conduct would not necessarily amount to a touching "done in a rude, insulting or angry manner."

In Florida, whether a touching amounts to battery turns on the victim's will. "[I]t is clear from Section 784.03 that any intentional touching of another person against such person's will is technically a criminal battery." D.C. v. State , 436 So. 2d 203, 206 (Fla. Dist. Ct. App. 1983). But in Kansas, whether a touching amounts to battery turns on the manner in which it is done. See K.S.A. 2018 Supp. 21-5413(a)(2). As Obregon argues, a touching done against a person's will is not necessarily a touching done in a "rude, insulting or angry manner." See Williams v. Weber , 905 F. Supp. 1502, 1510 (D. Kan. 1995) (ruling genuine issue of material fact precluded summary judgment on whether officer had probable cause to arrest plaintiff for battery based on plaintiff allegedly striking officer's hand when retrieving wallet from officer, when plaintiff testified he was "not rude, insulting or angry" in doing so).

Obregon's circumstances present a variation to the Wetrich analysis because we must consider what happens when the Kansas and out-of-state offenses are both what Kansas law refers to as alternative means crimes, i.e., offenses with multiple distinct sets of elements. See State v. Brown , 295 Kan. 181, 194, 284 P.3d 977 (2012). But see Moore , 307 Kan. at 603, 412 P.3d 965 ("Many alternative means may have supported the Oregon mental state element-e.g., intent to engage in disorderly conduct-that would not have been any kind of burglary in Kansas."); cf. Mathis v. United States , 579 U.S. ----, 136 S. Ct. 2243, 2249, 195 L. Ed. 2d 604 (2016) (" '[L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.' "). Obregon contends the district court must determine which Florida battery offense he committed and score the offense as a nonperson felony if the State cannot demonstrate he intentionally caused bodily harm to another person, or if it turns out the offense occurred under the unwanted touching provision. We agree.

In an analogous situation, the United States Supreme Court has "recognized a 'narrow range of cases' in which sentencing courts ... may look beyond the statutory elements ...."

Descamps v. United States , 570 U.S. 254, 261, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). When a "statute is 'divisible'-i.e. , comprises multiple, alternative versions of the crime-a later sentencing court cannot tell, without reviewing something more, if the defendant's conviction" arose under any particular alternative. 570 U.S. at 262, 133 S.Ct. 2276. In those cases, the Court's caselaw permits "sentencing courts ... to examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." 570 U.S. at 262, 133 S.Ct. 2276 ; see also Johnson v. United States , 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) ("When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes ..., the ' "modified categorical approach" ' ... permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record-including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.").

Wetrich implicitly recognizes the comparability analysis may focus on one of various alternative means of committing an offense. The Wetrich court compared the out-of-state offense to a particular subsection of the prior Kansas burglary statute, K.S.A. 21-3715(a), which made burglaries of dwellings person crimes. Wetrich , 307 Kan. at 563, 412 P.3d 984. Similarly, Moore also implicitly recognized this because it could have resolved the comparison between the earlier Kansas burglary statute, K.S.A. 21-3715, and an Oregon burglary statute on the grounds that the Oregon statute criminalized entering or remaining in a dwelling, a structure, or a conveyance with the requisite criminal intent-not just a dwelling. Instead, Moore focused on whether the criminal intent for an Oregon dwelling burglary-" 'intent to commit a crime therein ' "-was broader than the criminal intent required for Kansas' dwelling burglary, i.e., "intent to commit a felony, theft or sexual battery therein." 307 Kan. at 603, 412 P.3d 965. In other words, if comparison based on the specific, alternative means of the Kansas and out-of-state statutes at issue was not permitted, the more particularized analyses in these cases would not have been necessary.

We should also clarify how this alternative means problem fits within our standard of review for these person-crime classification cases. Typically we describe the classification issue as a question of law, but it is a bit more nuanced because it is the State's burden to prove by a preponderance of the evidence that the defendant committed a crime for which classification is appropriate. See K.S.A. 2018 Supp. 21-6814 ; State v. Hughes , 290 Kan. 159, 162, 224 P.3d 1149 (2010). And when the crime in question is an out-of-state offense with alternative means-some of which would not be comparable to Kansas person crimes-the State's burden is to establish that the defendant committed a version of the offense supporting the person classification.

On appeal, the district court's finding that the State met its crime classification burden must be supported by substantial competent evidence to withstand scrutiny. 290 Kan. at 162, 224 P.3d 1149. The presentence investigation summary frequently can satisfy the State's burden absent defendant's objection, but more is required when the summary does not indicate which version of the out-of-state offense the defendant committed. See K.S.A. 2018 Supp. 21-6814(b), (c). And failing additional proof, the person-crime classification is erroneous as a matter of law. See Wetrich , 307 Kan. at 562, 412 P.3d 984 (elements of out-of-state offense must be identical to, or narrower than, elements of Kansas comparator).

Applying this clarified standard of review, we hold the district court erred in classifying Obregon's Florida battery conviction as a person crime. The PSI report is the only item in the record establishing the conviction as part of his criminal history, and it does not indicate what version of the offense he committed. This means on this record there is not substantial competent evidence to support the district court finding that Obregon committed a Florida offense with a comparable Kansas person crime. And because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich without supporting evidence.

Remand is necessary so the district court can determine the appropriate classification. At resentencing, the State will have the burden to prove Obregon's criminal history by a preponderance of the evidence. See K.S.A. 2018 Supp. 21-6814 ; Hughes , 290 Kan. at 162, 224 P.3d 1149.

THE FIREARM ENHANCEMENT

In Kansas, a drug felony carries a six-month sentence enhancement if the trier of fact finds the defendant carried a firearm to commit a crime or possessed a firearm in furtherance of it. K.S.A. 2018 Supp. 21-6805(g)(1). In Obregon's case, he pleaded no contest to the base drug offenses, but not to any facts upon which the enhancement could be grounded. On review, he questions whether the panel erred by remanding his case for a jury to determine if the firearm enhancement should apply. We agree this was error.

Under the KSGA:

"(g)(1) Except as provided further, if the trier of fact makes a finding that an offender carried a firearm to commit a drug felony, or in furtherance of a drug felony, possessed a firearm, in addition to the sentence imposed pursuant to K.S.A. 21-6801 through 21-6824, and amendments thereto, the offender shall be sentenced to:
(A) Except as provided in subsection (g)(1)(B), an additional 6 months' imprisonment; and
(B) if the trier of fact makes a finding that the firearm was discharged, an additional 18 months' imprisonment.
"(2) The sentence imposed pursuant to subsection (g)(1) shall be presumptive imprisonment. Such sentence shall not be considered a departure and shall not be subject to appeal." K.S.A. 2018 Supp. 21-6805(g)(1) and (2).

The panel held the enhancement violated Obregon's right under Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because he did not validly waive his jury trial right. Obregon , 2018 WL 911215, at *3. The State did not cross-petition for review of that holding so the question is settled for this case. See State v. Gonzalez , 307 Kan. 575, 590, 412 P.3d 968 (2018) (an issue is settled when the State failed to cross-petition for review of Court of Appeals' determination that defendant's constitutional and statutory rights to be present were violated).

Obregon argues a jury trial is not appropriate because the statute does not provide for a procedure by which a trier of fact can make an Apprendi -compliant finding in a case with the same procedural posture as his. He cites State v. Kessler , 276 Kan. 202, 217, 73 P.3d 761 (2003), for the proposition that "a district court cannot fashion its own Apprendi -compliant mechanism," but Kessler is distinguishable because the statutory mechanism for imposing an upward durational departure sentence was declared unconstitutional. That has not happened here. The enhancement statute simply contemplates the firearm question be submitted to the trier of fact, which in the Court of Appeals' view was not properly done.

Obregon points out the panel's mandate conflicts with remedies ordered by other panels that concluded firearm enhancements were imposed in violation of Apprendi , referring to State v. Jernigan , No. 116,410, 2018 WL 1123926, at *4 (Kan. App. 2018) (unpublished opinion), and State v. Morales , No. 114,223, 2016 WL 4070748, at *4 (Kan. App. 2016) (unpublished opinion). In both cases, the panels vacated the defendants' sentences and remanded for resentencing without the enhancement. See also State v. Housworth , No. 115,836, 2017 WL 2834502, at *7, 16 (Kan. App. 2016) (unpublished opinion) (vacating sentence because enhancement was "illegal," since jury did not make the finding, and remanding for resentencing). Similarly, we note in State v. Allen , 283 Kan. 372, 379, 153 P.3d 488 (2007), the court simply vacated the sentence and remanded for resentencing after holding defendant's Apprendi rights were violated by a sentence that was calculated using a "persistent sex offender" enhancement, which in turn was based on the trial court's finding that a prior conviction was "sexually motivated." And in State v. Bello , 289 Kan. 191, 199-200, 211 P.3d 139 (2009), the court vacated an off-grid sentence imposed under Jessica's Law when the offender's age was found by the judge rather than the jury. In doing so, the court specifically "remanded for resentencing the convictions as on-grid felonies ...." 289 Kan. at 200, 211 P.3d 139. But these decisions do not address whether remand for a jury finding would have been permissible for the enhancement, so they are of little analytical value.

Nevertheless, these cases are consistent with Kansas caselaw generally prohibiting special jury verdicts in criminal cases. See State v. Brown , 298 Kan. 1040, 1047, 318 P.3d 1005 (2014) ("A special verdict 'is one where the jury does not render a general verdict of guilty or not guilty, but simply finds certain facts and leaves the rest to the court.' "). "[I]n criminal cases, ' "it has always been the function of the jury to apply the law, as given by the court in its charge, to the facts." ' " 298 Kan. at 1046, 318 P.3d 1005. " 'In general the only proper verdicts to be submitted in a criminal prosecution are "guilty" or "not guilty" of the charges.' " 298 Kan. at 1046, 318 P.3d 1005 (quoting State v. Osburn , 211 Kan. 248, 255-56, 505 P.2d 742 [1973] ). In Brown , the court applied this rule to hold a district court erred by submitting to the jury the question whether the defendant was over 18 at the time of his crimes as "special questions on the verdict forms rather than in guilty verdicts that were informed by instructions that included the defendant's age as an enumerated element." 298 Kan. at 1046, 318 P.3d 1005. The court noted the Legislature had "established procedures whereby sentence-enhancing fact(s), i.e. , elements of a greater offense, may be determined by a jury after it has already reached an initial verdict of guilty on the lesser degree of the offense." 298 Kan. at 1047, 318 P.3d 1005. The court cited K.S.A. 2013 Supp. 21-6817(b)(2), which permits a trial court to determine whether evidence of aggravating factors for departure purposes should be submitted to the jury in a separate departure sentencing hearing after the verdict. In the Brown court's view, "[s]uch serial factfinding is similar to that effected through the verdict forms special questions in this case." 298 Kan. at 1047-48, 318 P.3d 1005.

In Obregon's case, the district court already entered its judgment of conviction. A general guilty or not guilty verdict would not be possible on remand. And, as Obregon points out, the Legislature has not created a statutory exception to the general rule against special verdicts for a firearm enhancement to be determined separately after the verdict. This appeal concerns only his sentences, and, more pointedly, whether he used a firearm to commit his drug possession offenses.

The sentences are vacated and the case is remanded for resentencing in a manner consistent with this opinion, without the enhancement.

Johnson, J., concurring in part and dissenting in part:

Addressing the issues in reverse order, I agree with the majority's result on the firearms enhancement, i.e., the district court must resentence Obregon without the enhancement. With respect to the criminal history issue, I agree that the State failed to present sufficient evidence to support the classification of the Florida battery conviction as a person felony. That insufficiency of evidence should result in our vacating the sentence and remanding for resentencing with a criminal history score of C, which the majority identifies as the proper score when the Florida conviction is classified as nonperson.


author: The decision of the court was delivered by Nuss, C.J.: Stegall, J., concurring in part and dissenting in part:

text:
    STATE of Kansas, Appellee, v. Marcus Thiasen GUEIN Jr., Appellant.
    No. 115,426
    Supreme Court of Kansas.
    Decision filed June 28, 2019.
    Thomas J. Bath, of Bath & Edmonds, P.A., of Overland Park, argued the cause, and Mitch E. Biebighauser, of the same firm, was on the brief for appellant.
    Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   The decision of the court was delivered by Nuss, C.J.:

Marcus Guein, Jr., was convicted by a jury of felony distribution of marijuana and misdemeanor possession of paraphernalia. A majority of the Court of Appeals panel reversed in part and affirmed in part the district court's decision on Guein's motion to suppress evidence and remanded to that court. State v. Guein , 53 Kan. App. 2d 394, 388 P.3d 194 (2017). Guein and the State now seek our review of different issues in that majority decision.

The issues on appeal, and this court's accompanying holdings, are:

1. Was the pre- Miranda statement Guein made surrounding the initial pat-down of him admissible in evidence? No.
2. Was the post- Miranda statement Guein made given voluntarily and therefore admissible in evidence? No.

As a result, we affirm the panel majority's decision in part and reverse in part and remand for further proceedings in accordance with this decision.

FACTS AND PROCEDURAL HISTORY

At around 1:30 a.m., Lenexa police officers Curtis Weber and Megan Larson were driving through an area they knew had a high rate of drug crimes. Weber saw two parked cars in the lot of a Burger King the officers thought to be closed. He also saw a man, later identified as Guein, move from the driver's seat of one car to the passenger seat of the other. Because Weber immediately suspected a drug deal, he pulled into the lot so his patrol car was not blocking the car. He turned off his headlights and activated no emergency lights or sirens.

Weber and Larson got out, with Weber approaching the driver's side of the car (occupied by a man later identified as Jordan Gresham) and Larson approaching the passenger's. Through its open window, Weber detected the "very strong" odor of what he described as "fresh" marijuana. It is unclear whether he smelled marijuana that was raw, recently smoked, or something else. Weber told Gresham to "Come back here and talk to me, okay?" When Gresham asked, "Me? What for?" Weber responded, "Yes, you, because your car smells like marijuana." When Gresham apparently did not respond quickly enough to satisfy Weber, Weber dropped the request and directed Gresham to, "Come back here and talk to me." According to Guein's later testimony at the suppression hearing, at this point he felt he and Gresham were being accused of committing a crime.

Weber then told Larson to watch the passenger (Guein) and again directed Gresham to, "Come back here and talk to me." Gresham complied. Weber later testified that he made this statement because he was going to search the car. Weber further testified, "I also believed they could be in possession of narcotics."

Weber gave Gresham both a pat-down search and one in which he removed the contents of Gresham's pockets and placed them on the car. Finding nothing, Weber then ordered Gresham to go sit on the curb, directing that he not take the removed items with him.

Weber then approached the passenger side while Larson ordered Guein out of the car. At that point, Guein and Weber were face-to-face. Weber asked Guein if he had any weapons. When Guein replied, "No," Weber asked to pat him down, just "[t]o be sure." Guein agreed. Weber testified Guein would have been moved so Guein faced away from him and he would have instructed Guein to put his hands on his head.

While Guein was in this submissive position, Weber also asked to search Guein's pockets. After Guein agreed, Weber removed everything from them. As Weber had done with Gresham, he placed the contents on Gresham's car. Guein later testified that when Weber took his possessions, "I took it that I was gonna be here for a while."

About the time Weber searched Guein's pockets and removed their contents, Weber said, "Dude, you reek of weed." Guein replied, "Yeah." Weber then asked, "How much weed you got?" On the body cam video Guein can clearly be heard to respond, "I have none."

Weber did not accept this answer but instead asked, "You have none?" Guein then confessed to having a "little bag" on him. When asked at the suppression hearing why he changed his answer, Guein testified his "pockets were empty and [he] was still in a state where [he] wasn't free to go." He believed Weber was going to search him anyway, and he did not feel he had the option of not answering his questions. Guein also testified that during the encounter he feared for his physical safety.

Weber asked Guein to retrieve the bag of marijuana. After Guein complied, he handed it to Weber who handcuffed him behind his back. Weber then walked the handcuffed Guein to the back of the patrol car. En route, a discussion occurred that is at the heart of the second issue on appeal, i.e., the voluntariness of Guein's post- Miranda statement:

Weber: "Right now is the time to be honest with me, man, okay? Don't fuck around with me and I ain't gonna fuck around with you, okay? You hear me?"
Guein: "I'm not going to fuck around with you."
Weber: "Listen, man. I'm telling you right now I know what you're doing out here. I'm going to ask you some questions here in a little bit."
Guein: "Yes, sir."
Weber: "Don't fuck with me, okay?"
Guein: "I understand, sir."
Weber: "You hear me? You don't screw around with me. I ain't gonna screw around with you. I'm gonna do what I can to help you out, okay?"
Guein: "Yes, sir."
Weber: "I'm telling you right now, I know what's going on, all right? Have a seat."

When Weber put the handcuffed Guein into the back of the patrol car, he asked whether there was any additional marijuana in either of the two cars. Guein responded that marijuana was in his car. Leaving Guein in the back of the patrol car, Weber approached Guein's car. Inside he saw a handgun and loose marijuana in plain view. Weber called in the serial number on the handgun-which it turned out Guein legally owned-and for a K-9 unit.

Weber then approached Gresham seated on the curb and gave essentially the same warning he had given Guein:

"I'm going to tell you just like I told your buddy. We know what's going on here, okay? We're not going to ask you questions right now. We're going to ask you questions here in a minute, alright? I'm gonna tell you-don't fuck around with me, okay? You don't screw with me, I ain't gonna screw with you. You understand? Alright. And I'll tell you I know what's happening right now, alright? Have a seat."

Weber directed Gresham to the back seat of another patrol car that had arrived. He returned to Guein who by this time had been waiting about 10 minutes in the back of Weber's patrol car. Weber rapidly read Guein his Miranda rights, telling him "I've gotta do it because you're in handcuffs."

Weber: "All right, man, I'm going to read you your rights. You ever been arrested?"
Guein: "No."
Weber: "Never? You never been put in handcuffs?"
Guein: "No."
Weber: "Okay. I'm gonna read you your rights. You've seen or heard it on TV; I've gotta do it because you're in handcuffs, okay? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and to have him present while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights, not answer any questions, or make any statements. Do you understand each of those rights that I've explained to you-there were five of them?"
Guein: "Yes, sir."
Weber: "And with those rights in mind, do you want to talk to me?"
Guein: "Yeah, man." (Emphasis added.)

Guein admitted he had purchased the marijuana for $25 and was there to sell it to Gresham for $50. Guein told Weber that he had never been arrested or put in handcuffs before and that he was nervous. Weber asked Guein about becoming a confidential informant. But Guein, a Missouri resident, had no contacts on the Kansas side of the state line that would be helpful. Guein lamented his lack of information that would help Weber. He repeated several times that he wished he did.

After this discussion with Guein, Weber returned to Guein's car to actually conduct a search. Inside, he found a glass jar of marijuana in a backpack on the front seat. He also found rolling papers, a marijuana pipe, a wood grinder, and a box of plastic baggies.

The State charged Guein with distribution of marijuana, felony possession of paraphernalia, and misdemeanor possession of paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of the search of his person and his car.

At the suppression hearing, Guein argued: (1) his pre-Miranda statement that he had marijuana on his person and in his car should be suppressed because Weber interrogated him while he was in custody without first informing him of his Miranda rights; (2) his post- Miranda statements that he was there to sell marijuana should be suppressed because Weber had threatened him by saying, "Don't fuck around with me and I ain't gonna fuck around with you"; and (3) the physical evidence-the bag of marijuana and the items found in his car-should be excluded from evidence because they were discovered by violating his constitutional rights when Weber was questioning him. The district court found that the police had the right to investigate the two cars parked late at night in a high-crime neighborhood as well as to further investigate after smelling the odor of marijuana coming from one of the cars. Because the court ruled Guein was not in custody until Weber handcuffed him, it found admissible his statement that he had marijuana in his underwear. But the court suppressed Guein's statement-made between the time he was handcuffed and before he was provided a Miranda warning-that he had marijuana in his car. By contrast, the court ruled the post- Miranda statements were admissible because at that point Guein had voluntarily waived his rights. Finally, the court denied suppression of the physical evidence because Guein's pre- Miranda statement about the marijuana in his underwear was admissible and the doctrines of plain view and inevitable discovery applied to the evidence in his car.

A jury later found Guein guilty of felony distribution and misdemeanor possession of paraphernalia but acquitted him of felony possession of paraphernalia.

On Guein's appeal, he reasserted that his initial statement about having marijuana on his person should be suppressed because Weber interrogated him while he was in custody without first informing him of his Miranda rights. Guein also argued that this marijuana itself should be suppressed because Weber lacked legal authority to search him for it. He additionally argued the statements he made after being Mirandized that he was there to sell marijuana should be suppressed because Weber's warning not to "fuck with" him constituted threats and promises that had a coercive effect, making those later statements involuntary. State v. Guein , 53 Kan. App. 2d 394, 388 P.3d 194.

The entire Court of Appeals panel held that the district court properly admitted Guein's statement about the marijuana in his underwear and the marijuana itself found there. But only a majority ruled the lower court erred in denying the motion to suppress Guein's post- Miranda statement that he was there to sell Gresham marijuana. The majority concluded Weber's statements to Guein were sufficiently threatening to negate the Miranda warning. But it could not conduct a harmless error analysis to determine the significance of Guein's statements in convicting him on the distribution charge because the State did not include a trial transcript in the record on appeal. So the majority set aside the convictions and ordered a new trial.

Judge Gardner dissented, writing that she would have affirmed the district court's denial of Guein's motion to suppress his post- Miranda statements.

We granted the State's petition for review and Guein's cross-petition. Guein did not seek review of the panel's ruling that the State had probable cause to search his person based on the smell of marijuana and his admission that he had marijuana in his underwear. So that issue is not before us. Snider v. American Family Mut. Ins., Co. , 297 Kan. 157, 172, 298 P.3d 1120 (2013) (challenge to Court of Appeals holding not before Supreme Court on review when issue not raised in petition or cross-petition). Our jurisdiction is under K.S.A 20-3018(b) (petition for review) and K.S.A. 60-2101(b) (review of Court of Appeals decision).

Additional facts will be provided as necessary to our analysis.

ANALYSIS

Both of the evidence suppression issues on appeal have the same standard of review.

Standard of review

When an appellate court reviews a district court's decision on a motion to suppress, it first reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. State v. Dern , 303 Kan. 384, 392, 362 P.3d 566 (2015). Substantial evidence means legal and relevant evidence that a reasonable person would find adequate to support a conclusion. State v. May , 293 Kan. 858, 862, 269 P.3d 1260 (2012).

The district court's ultimate legal conclusions are reviewed de novo, and the appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in the evidence. Dern , 303 Kan. at 392, 362 P.3d 566. When the significant facts are not in dispute, whether to grant or deny a suppression motion presents a question of law over which the appellate court has unlimited review. State v. Stevenson , 299 Kan. 53, 57, 321 P.3d 754 (2014). The State bears the burden of proving the challenged statements and physical evidence are admissible. K.S.A. 22-3215(4) ; K.S.A. 22-3216(2).

Issue 1: Was the pre- Miranda statement Guein made surrounding the initial pat-down of him admissible as evidence?

Guein argues his statements made surrounding his pat-down, e.g., that he had marijuana on his person, should be suppressed. He specifically asserts he was being interrogated in custody and Weber fatally failed to read him the warnings required in such situations by Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See State v. Hebert , 277 Kan. 61, 68, 82 P.3d 470 (2004).

Guein argues the "investigatory detention" analysis adopted by Kansas appellate courts has been stretched beyond its proper limits. But he does not make the standard argument that the detention violated the Fourth Amendment. Rather, he bases his argument on a violation of the Fifth Amendment privilege against self-incrimination. Hebert , 277 Kan. at 68, 82 P.3d 470. As a result, his position rises and falls on whether he was in custody-to trigger the Miranda warnings-when he made this incriminating statement surrounding the initial pat-down. Guein , 53 Kan. App. 2d at 404, 388 P.3d 194 ("the only dispute in our case is whether [Guein] was 'in custody' for Miranda purposes").

We begin our analysis with an important observation: the Fourth and Fifth Amendments provide occasionally overlapping, but nevertheless distinct, protections. See, e.g., United States v. Kim , 292 F.3d 969, 975 (9th Cir. 2002) ("[W]hether an individual ... has been unreasonably seized for Fourth Amendment purposes and whether that individual is 'in custody' for Miranda purposes are two different issues."); see also In re I.J. , 906 A.2d 249, 257 (D.C. 2006) ("[T]he Fourth Amendment inquiry is not the same as, nor does it ultimately decide, the question of whether there was custody under the Fifth Amendment."); accord United States v. Acosta , 363 F.3d 1141, 1148-50 (11th Cir. 2004). In short, under the Fourth Amendment, a person is protected from unreasonable searches and seizures. But the Fifth Amendment protects a person's privilege against self-incriminating statements.

For purposes of a Fourth Amendment analysis, encounters between law enforcement officers and the public are generally classified under one of these categories: (1) consensual encounters; (2) investigatory detentions, also known as Terry stops; (3) public safety stops; and (4) arrests. State v. Martinez , 296 Kan. 482, 485, 293 P.3d 718 (2013). Relevant to this case, an investigatory detention or Terry stop allows an officer to detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. K.S.A. 22-2402(1) ; see Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Although a person is seized when stopped by an officer and the freedom to walk away is restrained, a person can be seized without actually being under arrest. When a person is temporarily seized under Terry -but not under arrest-that encounter is an investigatory detention. State v. Hill , 281 Kan. 136, 142, 130 P.3d 1 (2006).

By contrast, under the Fifth Amendment, statements stemming from custodial interrogation must be excluded unless the State shows it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination. State v. Schultz , 289 Kan. 334, 340-41, 212 P.3d 150 (2009). As we said in State v. Lewis , 299 Kan. 828, 834-35, 326 P.3d 387 (2014) :

"The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation. A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage. State v. Warrior , 294 Kan. 484, 496, 277 P.3d 1111 (2012) ; see State v. Bridges , 297 Kan. 989, 1002, 306 P.3d 244 (2013)."

At the heart of the custody analysis, the court must ultimately determine as a matter of law whether, under the totality of the circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter. State v. Bridges , 297 Kan. 989, 1009, 306 P.3d 244 (2013) (citing State v. Warrior , 294 Kan. 484, 497, 277 P.3d 1111 [2012] ); see Thompson v. Keohane , 516 U.S. 99, 113-14, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995) ("[I]f encountered by a 'reasonable person,' would the identified circumstances add up to custody as defined by Miranda ?").

Nonexclusive factors to consider in making this determination-if an interrogation is custodial or investigative-include: (1) the interrogation's time and place; (2) its duration; (3) the number of law enforcement officers present; (4) the conduct of the officer and the person questioned; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person questioned was escorted by officers to the interrogation location or arrived under his or her own power; and (8) the interrogation's result, e.g., whether the person was allowed to leave, was detained further, or was arrested after the interrogation. No single factor outweighs another, nor do the factors bear equal weight. Every situation must be analyzed on its own particular facts. See Lewis , 299 Kan. at 835, 326 P.3d 387 ; Bridges , 297 Kan. at 1008, 306 P.3d 244.

The full panel considered these eight factors in its Fifth Amendment analysis. It also acknowledged that whether a person is in custody for Miranda purposes can be a complex question because there are some situations in which a person may not truly be free to leave but still has not been " 'subjected to restraints comparable to those associated with a formal arrest,' " so Miranda warnings need not be given. Guein , 53 Kan. App. 2d at 405, 388 P.3d 194 (quoting Berkemer v. McCarty , 468 U.S. 420, 441, 104 S. Ct. 3138, 82 L. Ed. 2d 317 [ (1984) ] ). It concluded Guein did not make incriminating statements surrounding the initial pat-down, like having marijuana on his person, that would equate to a confession during a custodial interrogation. So Miranda warnings were not necessary.

Like the panel, we too apply the eight factors listed in Lewis to our facts. But we disagree with the panel's ultimate legal conclusion because nearly all the factors favor Guein. Specifically, we conclude the circumstances establish that the encounter was custodial, i.e., a reasonable person would not have felt free to terminate the interrogation and disengage from the encounter. Bridges , 297 Kan. at 1009, 306 P.3d 244 ; Warrior , 294 Kan. at 497, 277 P.3d 1111.

In our custody analysis, we logically start with the Lewis factor concerning time and place of the encounter. Weber testified he saw no other cars in the area at 1:30 a.m. and the officers believed the Burger King was closed. See State v. Williams , 297 Kan. 370, 380, 300 P.3d 1072 (2013) (holding under Fourth Amendment analysis that circumstance of law enforcement encounter occurring at 2:30 a.m. on a deserted sidewalk would contribute to a belief that defendant was not free to leave). From the viewpoint of a reasonable person in Guein's position, the early morning hour, the darkness, and nearly deserted area would be considerations weighing toward custody.

As to the second factor, a consideration in our previous decisions has been whether officers immediately exert their authority or ask questions without advising the person he or she is free to leave or to decline answering them. See Williams , 297 Kan. at 380, 300 P.3d 1072 ("[T]he officers immediately began asking Williams questions without indicating he was free to leave."); State v. Epperson , 237 Kan. 707, 713-14, 703 P.2d 761 (1985) (concluding under a Fourth Amendment analysis that officer unlawfully detained defendant when officer called out to him to wait as he walked away from his car, he stopped walking in response, and officer immediately began asking general questions about his reasons for being in the area); see also State v. Soto , 143 N.M. 631, 179 P.3d 1239 (2008) (discussed in Williams and holding a reasonable person riding a bicycle at 2:30 a.m. would not feel free to leave when officers pulled alongside and immediately began questioning the person about his activities).

Here, Weber immediately asked Gresham to "Come back here and talk to me, okay?" When Gresham asked why, Weber responded by telling Gresham-with Guein alongside-it was because the car they sat in smelled of marijuana. After Gresham apparently hesitated to comply, Weber changed from simply requesting to twice commanding Gresham to "come back here and talk to me." And Gresham complied. At no time was Gresham advised he did not have to comply with the commands or answer questions. Contrast Bridges , 297 Kan. at 1009, 306 P.3d 244 (officers told defendant he did not have to let them into his room to talk, he did not have to discuss anything with them, and they would leave if he so desired). Here, the absence of these police advisories (though concededly not required), and the immediate show of authority sustained over an admittedly short (but intense) time frame, point toward a reasonable person not feeling free to end the questioning or to leave. And the seated Guein certainly had the ability to watch and hear this interaction while he was being guarded by Larson at Weber's direction. Indeed, Guein testified that at this stage he already felt Weber was accusing him and Gresham of committing a crime. And Weber's own testimony confirmed he (1) believed at that point that Guein and Gresham "could be in possession of narcotics," and (2) was going to search the car.

Third, while only two officers were present, they approached Gresham's car on opposite sides, putting Gresham and Guein between them. And as Weber searched each man, Larson guarded the other-first Guein while seated in the car and later Gresham seated on the curb. See United States v. Dudley , 854 F. Supp. 570, 579 (S.D. Ind. 1994) (noting that circumstance of one occupant of vehicle being ordered to sit on the ground while officers watched over her, "tilt[ed] the scales and present[ed] a 'show of authority' by police officers"); cf. Schultz , 289 Kan. at 341-42, 212 P.3d 150 (authorities telling defendant not to move from his kitchen table and keeping him under constant observation was a factor weighing in favor of custody). So while only two officers were involved, their one-to-one ratio to the car's occupants allowed a show of authority specific to each.

This circumstance carries over to the fourth factor-the conduct of the officer and the person questioned. In addition to the conduct we previously described when discussing the other factors, Guein specifically could see and hear even more concerning Gresham's interaction with Weber: Weber patting down Gresham, then emptying Gresham's pockets and placing their contents on the car. Guein could also witness Weber ordering Gresham to sit on the curb after the pat-down and search and telling him to leave his pocket contents there. See Lewis , 299 Kan. at 837, 326 P.3d 387 (defendant surrendering his car keys, cell phone, and wallet before the questioning was a circumstance weighing in favor of custody); State v. Thompson , 284 Kan. 763, 801, 166 P.3d 1015 (2007) (discussing factors in a Fourth Amendment context and noting that "typically a driver would not feel free to leave if his or her driver's license has not been returned"). With this scene unfolding before Guein, a reasonable person in his position would have understood he too was subject to the officers' authority and his freedom was restrained-especially because he knew Larson was watching him (at Weber's direction).

As for law enforcement actions soon directed toward Guein personally, Larson ordered-not asked-Guein to get out of the car. Weber then had Guein turn around and place his hands on his head. After Guein's compliance, Weber proceeded as Guein had witnessed with Gresham: a pat-down, a search of Guein's pockets, removal of their contents, and placement on the car. During this time, Weber also told Guein his body "reeked of weed." He asked how much weed Guein possessed and openly challenged Guein's denial. And as with Gresham, Guein too never was given police advisories that he did not have to answer questions or comply with the commands. Perhaps because of Gresham's behavior as his example, he decided to comply-and answer. Given the officers' conduct, and Guein's reaction, a reasonable person would not have felt free to end the interrogation or to leave. See Lewis , 299 Kan. at 837, 326 P.3d 387 ; Schultz , 289 Kan. at 341-42, 212 P.3d 150 ; Thompson , 284 Kan. at 801, 166 P.3d 1015.

This conduct also relates to the fifth factor-the presence or absence of physical restraint or its functional equivalent, such as drawn firearms or a stationed guard. Neither officer drew a firearm. But as mentioned, Weber directed Larson to stand guard over the seated Guein while he searched Gresham-and later to stand guard over the seated Gresham while he searched Guein. Additionally, when the interrogation started, Guein was still standing in the submissive position of his hands on his head. Weber stood right behind him-searching. This factor weighs toward custody. See State v. Schultz , 289 Kan. at 341-42, 212 P.3d 150 (through verbal instruction and physical positioning, officers prevented defendant from leaving their presence).

As to the sixth factor, because Weber detected the "very strong" smell of marijuana in the car where Guein was seated and the "reek of weed" on Guein's person after he got out, Weber clearly focused on Guein as a suspect-not a witness. And Weber questioned Guein (and searched him) because he believed Guein "could be in possession of narcotics." See Lewis , 299 Kan. at 837, 326 P.3d 387 (circumstance weighing in favor of custody was defendant being questioned not just as witness but as person of interest in the crimes).

The seventh factor relates to whether officers escorted the person to the interrogation location or arrived under his or her own power. Certainly, Guein drove himself to the scene. But Larson watched over him in the car, ordered him out of it, and after Guein complied, Weber had him turn around and put his hands on his head. Focusing on those movements from his seated position in the car to the spot of the interrogation, the officers directed Guein's movement through a show of authority. See State v. Regelman , 309 Kan. 52, 55, 60, 430 P.3d 946 (2018) (officers ordering defendant to stop walking away and "either sit on the steps or sit in my patrol car" subjected him "to the functional equivalent of physical restraint since he had been denied freedom of movement and was ordered to return to his porch [steps]").

Finally, the eighth factor relates to the interrogation's result-whether officers allowed the person to leave, detained the individual further, or arrested the individual after the interrogation. Here, it took Weber mere seconds to arrest Guein and handcuff him because Weber already was standing over and behind Guein during the search and interrogation. See Lewis , 299 Kan. at 837, 326 P.3d 387 (after interview, defendant was questioned further, detained, and arrested-a circumstance weighing in favor of custody).

We acknowledge Guein's subjective beliefs are not part of the legal analysis to determine if the interrogation is custodial or investigative. But we observe, among other things, he testified he changed from denying-to admitting-to Weber that he had marijuana because his "pockets were empty and [he] was still in a state where [he] wasn't free to go." He further testified he believed Weber was going to search him anyway, and he did not feel he had the option of not answering his questions. He also testified that during the encounter he feared for his physical safety.

More to the dispositive analytic point, however, after our de novo review we conclude a reasonable person in Guein's position would have held the same beliefs-that he or she was not free to terminate the interrogation and disengage from the encounter. See Bridges , 297 Kan. at 1009, 306 P.3d 244 (citing Warrior , 294 Kan. at 497, 277 P.3d 1111 ). In short, we conclude nearly every factor listed in Lewis leads to the conclusion that the interrogation was custodial. We specifically disagree with any panel suggestion that Guein was not " 'subjected to restraints comparable to those associated with a formal arrest.' "

53 Kan. App. 2d at 404-05, 388 P.3d 194 (quoting Berkemer , 468 U.S. at 441, 104 S.Ct. 3138 ). So Weber should have given Guein Miranda warnings before questioning him.

As a result, we reverse the district court's denial of Guein's motion to suppress this particular pre- Miranda statement. See State v. Schultz , 289 Kan. at 340-41, 212 P.3d 150 (under the Fifth Amendment, statements stemming from custodial interrogation must be excluded unless the State shows it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination).

Issue 2: Was the post- Miranda statement Guein made given voluntarily and therefore admissible in evidence?

The State agrees with the district court and Judge Gardner's dissent by arguing Weber's pre- Miranda statements-made as he walked the handcuffed Guein to the patrol car-were not coercive. So it argues Guein's post- Miranda statement that he was there to sell marijuana to Gresham was voluntary and thus properly admitted in evidence.

When a defendant claims his or her statements to police were not voluntary, the State bears the burden to prove the voluntariness by a preponderance of the evidence. State v. Garcia , 297 Kan. 182, 188, 301 P.3d 658 (2013). A case-by-case evaluation is employed to determine whether-as alleged here-coercion was impermissibly used in obtaining a statement. See State v. Swanigan , 279 Kan. 18, 44, 106 P.3d 39 (2005). And to determine whether the statement was the product of the defendant's free and independent will, this court examines the totality of the circumstances surrounding it and determines its voluntariness by considering the following list of 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.' [Citation omitted.]" State v. Stone , 291 Kan. 13, 21, 237 P.3d 1229 (2010) (quoting State v. Johnson , 286 Kan. 824, 836, 190 P.3d 207 [ (2008) ] ).

In State v. Sharp , 289 Kan. 72, 81, 210 P.3d 590 (2009), this court described the weight a court should give these six factors:

" '[T]hese 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. [Citation omitted.] 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.' [Citations omitted.]"

The judicial determinations of whether a person (1) voluntarily waived Miranda rights and (2) voluntarily produced a statement usually are separate. In other words, one can make a voluntary waiver of his or her Miranda rights but still produce an involuntary confession. But sometimes, as here, whether the defendant waived Miranda rights can be virtually indistinguishable from whether the defendant's statement was voluntary. See State v. Mattox , 280 Kan. 473, 483-84, 124 P.3d 6 (2005).

The panel majority held the State failed to meet its burden to show that Guein's post- Miranda statements were voluntary. In particular, after reviewing the language during Weber's pre- Miranda walk and talk with Guein, it emphasized Weber made threats that coerced Guein's later self-incriminating statements. It pointed out Guein had his hands cuffed behind him when Weber told him, "Don't fuck around with me, and I ain't gonna fuck around with you." The majority agreed with Guein that "[t]he standard for a [non]coercive environment should rise far above a level where an individual needs to fear what a law enforcement officer might mean by threatening to 'fuck around with' them." State v. Guein , 53 Kan. App. 2d at 410, 388 P.3d 194. Among other things, the majority underscored Guein's then being left alone in the patrol car to contemplate what these words could, or likely would, mean.

The majority also ruled that Weber's rapid, dismissive reading of Miranda rights to Guein because Weber "has to" is not sufficient to overcome the vague or implied threat of physical harm or legal consequences that Weber would subject him to if he did not answer the questions in a way that was consistent with Weber's expectations. State v. Guein , 53 Kan. App. 2d at 411, 388 P.3d 194. We agree with the majority that the context in which Weber gave the Miranda warnings is significant in determining whether the State showed Guein's statements were voluntarily made.

We begin our voluntariness analysis by recalling the language of the United States Supreme Court:

"Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, 'coercion can be mental as well as physical, and ... the blood of the accused is not the only hallmark of an unconstitutional inquisition.' " Arizona v. Fulminante , 499 U.S. 279, 287, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

Indeed, K.S.A. 2018 Supp. 60-460(f) recognizes this principle by providing in relevant part:

"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
....
"(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused ... (2) was not induced to make the statement: (A) Under compulsion or by infliction or threats of infliction of suffering upon the accused."

See State v. Swanigan , 279 Kan. at 28-36, 106 P.3d 39 ; see also State v. McCarther , 197 Kan. 279, Syl. ¶ 4, 416 P.2d 290 (1966) (confession inadmissible when elicited by force or threats).

The dissent would have affirmed the district court. It contended the majority made no effort to apply the factors it should have considered in determining whether Guein's statement was voluntary. Summarized, those factors and the dissent's analysis include: (1) Guein's age, intellect, and background (a college-educated 27-year-old who, while having very little experience with the police, lived in an area he considered "hood"); (2) Guein's fluency with the English language; (3) Guein's mental condition (no mental problems, sober, and able to respond to Weber's questions); (4) Guein's ability to communicate on request with the outside world (after his arrest and while sitting in the police car Guein asked if he could call his "lady friend," which he was later permitted to do from jail); (5) the manner and duration of the interview (relatively short and conversational, with a 10-minute gap between the "profane" statements and the Miranda warning, during which Guein had time to reflect); and (6) the officer's fairness in conducting the interview (Guein alleges no post- Miranda unfairness, and the officer's pre- Miranda profanity was not coercive to Guein because he uses the same language). 53 Kan. App. 2d at 415-16, 388 P.3d 194.

The dissent dutifully considered all six factors-which it acknowledged are nonexclusive. But of course the strength of only a factor or two can render a statement involuntary. State v. Randolph , 297 Kan. at 326, 301 P.3d 300 (" '[A] single factor ... 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.' "). For example, in State v. McCarther , 197 Kan. 279, 416 P.2d 290, a burglary suspect was lying face down outside with his hands cuffed behind his back when an officer drew his pistol, held it to the suspect's head, and said, " 'After a deal like this, I should blow this punk's brains out.' " 197 Kan. at 282, 416 P.2d 290. The officer admitted he also had raised his foot and held it over the suspect's head one time. The court ruled the ensuing confession was involuntary. Under such circumstances, factors such as the suspect's age, intellect, background, fluency with the English language, and duration of the interview obviously have little weight. Cf. Buck v. Davis , 580 U.S. ----, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017) ("Some toxins can be deadly in small doses.").

As a result, as explained below, we conclude the dissent undervalues the gravity of this episode. We conclude, like the majority, that taken in context, it would not be unreasonable for a person to have determined Weber made an implied threat that was connected to answering the questions in the way he wanted.

En route to this conclusion, for several reasons we specifically reject the State's related argument that Guein, as a college-educated man who brought a gun with him to a meeting where he intended to sell marijuana, would not have been affected by the use of Weber's language. First, profanity is often used for emphasis and reinforcement. So we agree with the panel majority that its use here "amplified the serious nature of the statements being made, as the use of any particularly strong language, forcefully said, might do." State v. Guein , 53 Kan. App. 2d at 411, 388 P.3d 194.

Second, we note how context changes the use of language and its connotations. For example, we contrast the title of the popular movie "Whiskey Tango Foxtrot" (and what the military's phonetic "Foxtrot" stood for there, i.e., "W hat the f uck?"), with an armed police officer's instruction to an arrestee: "Don't fuck around with me and I ain't gonna fuck around with you, okay? You hear me?" and, "Don't fuck with me, okay? You hear me?" And consider the language is directed to an arrestee cuffed from behind and being walked across the parking lot of a closed business to the officer's patrol car at 1:30 a.m.-when eyewitnesses are unlikely.

Just a few cases illustrate why in this context a reasonable person would associate such profanity with violence. In Cordell v. McKinney , 759 F.3d 573, 576-78 (6th Cir. 2014), a jail inmate requested a haircut. The deputy sheriff replied, " 'Don't fuck with me about being put on the haircut list, or your sorry ass won't get one.' " The inmate responded with some version of, " 'Fuck you, you sawed-off piece of shit,' " which earned him a trip to a holding cell on another floor. Before the trip, the deputy handcuffed the inmate behind his back. According to the inmate, during the walk he turned and tried to face the deputy. The deputy raised the inmate's cuffed arms and-outside the surveillance camera's view-rammed his head into a concrete wall, cutting his forehead. The inmate's blood was found on the wall and floor. At the hospital he received five stitches and was diagnosed with "neck pain following whiplash-type injury." 759 F.3d at 579.

In State v. Filiaggi , 86 Ohio St. 3d 230, 714 N.E.2d 867 (1999), a woman filed criminal charges for domestic violence and brought a complaint for other crimes against her ex-husband (the defendant). He broke into a house, and just before fatally shooting her multiple times with a pistol, twice told her, " 'This will teach you ... to fuck with me.' " 86 Ohio St. 3d at 232, 248, 714 N.E.2d 867. Similarly, in State v. Anderson , 710 N.W.2d 392, 397 (N.D. 2006), when the defendant was asked why he carried weapons-a handgun and AK-47 rifle-he replied, " 'In case the law tries to fuck with me!' " In DeLuca v. Lord , 77 F.3d 578 (2d Cir. 1996), the defendant and her female friend met three men at a bar early one morning. After all of them left the bar, the defendant returned to use the bathroom and upon leaving told several patrons, " 'I'm an ex-cop and these guys better not fuck with me because I'll kill them.' " 77 F.3d at 580. She was eventually convicted of killing one of the men several hours later.

Here, we have an armed officer during a walk and talk who twice essentially tells an arrestee (handcuffed behind his back) "[d]on't fuck with me"-when I "ask you some questions here in a little bit" because "I know what you're doing out here [a drug deal]" and "I'm telling you right now, I know what's going on, all right?" The arrestee is then immediately placed alone in a patrol car to think about what this meant-for a yet-to-be determined amount of time. His contemplation is followed 10 minutes later by a rapid, dismissive reading of the Miranda warning-including Guein's right to remain silent-that the officer says "I've gotta" give.

This sequence indicates that arrestee Guein had better not be silent because that would show he was "fuck[ing] around" and not "be[ing] honest" with Weber who twice told Guein he knew why Guein was there. Right after being Mirandized, Guein agreed to talk. Cf. State v. Swanigan , 279 Kan. at 38, 106 P.3d 39 ("[W]e fail to see how law enforcement can be required by Miranda to advise Swanigan of his right to remain silent, and then can be allowed to warn him of punishment for his 'noncooperation' when he exercises that right."). So we agree with the panel majority that Weber's language implied physical violence toward Guein, prompting his later incriminating statement.

"[A]n extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear ... it will be excluded as involuntary." State v. Garcia , 297 Kan. at 196, 301 P.3d 658. As a result, we affirm the Court of Appeals majority on this issue.

We remand to the district court for further proceedings.

Stegall, J., concurring in part and dissenting in part:

I would affirm the lower courts' decisions to allow Guein's pre- Miranda statements into evidence. As such, I dissent from the portion of today's decision ordering the suppression of that evidence. In my view, the Court of Appeals correctly applied the Lewis factors and concluded that "this portion of the encounter was much like a traffic stop, ordinarily considered an investigatory detention not requiring Miranda warnings." State v. Guein , 53 Kan. App. 2d 394, 405, 388 P.3d 194 (2017) ; see State v. Lewis , 299 Kan. 828, 835, 326 P.3d 387 (2014) (listing eight "[f]actors to consider in determining if an interrogation is investigative or custodial").

I agree, however, with the majority that Guein's post- Miranda statements were not voluntary and must be suppressed. Though I do not find the use of profanity nearly as significant as the majority does. The majority relies heavily on the use of the word "fuck" to reach its conclusion, going so far as to hold that "in this context a reasonable person would associate such profanity with violence." Op. at 353. I disagree. Indeed, the ubiquity of profanity-the word "fuck" in particular-has effectively sapped its once vaunted ability to shock, frighten, or offend. See Dunn, On Cussing: Bad Words and Creative Cursing 17 (2019) (lamenting the "potent word being drained of all its juice and snap by overuse"); McWhorter, Swearing In , The New Republic, March 22, 2011, https://newrepublic.com/article/85504/curse-words-pop-music-cee-lo (explaining that "in real language, yesterday's hot stuff is always today's papier-mache. Hence language change is not only a matter of people giving up prithee and forsooth , but one of The New Yorker printing shit and ordinary people texting WTF 24/7"); see also Fairman, Fuck , 28 Cardozo L. Rev. 1711, 1720 (2007) (describing the ubiquity of the word: "One recent Internet search revealed that fuck 'is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet.'").

Simply put, in my judgment, law enforcement's use of the word "fuck" does not make the circumstance more or less coercive. Guein was not coerced because of his tender ears, but because of a real and actionable threat. And the practical problem with the majority's reasoning is that it suggests a politely worded threat is less coercive than a vulgar one.

Biles, J., joins in the foregoing concurring and dissenting opinion.