text:
    In the MATTER OF the MARRIAGE OF Rajat BARUA, Appellee, and Linda HAMIDJAJA, Appellant.
    No. 119,120
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Joseph W. Booth, of Lenexa, for appellant.
    Patrick Copley, of Overland Park, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Rajat Barua (Father) and Linda Hamidjaja (Mother) divorced in 2015. After the divorce they shared custody of their daughter S.B. In 2017, Mother moved the district court for an order allowing her to move S.B. with her to the state of California. The district court denied Mother's motion. Mother appeals, raising multiple arguments. For reasons set forth below, we affirm the district court.

Mother and Father married in September 2010. They are both doctors. Their daughter, S.B., was born in 2011. Father filed for divorce in April 2013. The divorce was finalized in April 2015. Mother and Father retained joint legal custody of S.B.; Mother had primary residential custody. The divorce order incorporated a stipulated parenting plan that gave both Mother and Father residential time with S.B. Both Mother and Father continued to live in Johnson County after the divorce. Mother's parents, the Maternal Grandmother and Grandfather, live with her. Father's mother, the Paternal Grandmother, lives with him.

In January 2017, Father filed a "Motion to Modify Parenting Plan and ... Enforce Co-parenting Therapy Provision of Parties' Decree of Divorce." Mother responded, asking that the district court dismiss Father's motion.

In March 2017, the district court reappointed Christopher Reecht as S.B.'s Guardian Ad Litem (GAL). Reecht previously served as S.B.'s GAL during Mother's and Father's divorce litigation. The order reappointing Reecht included a clause stating: "The parties agree to waive any ex-parte communications between the Guardian Ad Litem and the Court. Counsel for the parties agrees to allow the Guardian Ad Litem to have direct contact/communications with their client(s)."

On July 12, 2017, Father moved for an "Order Commanding Mother to Not Move Out of State with the Parties' Minor Daughter." Mother opposed this motion, arguing that she did not intend to move without first receiving a court order allowing her to do so. On August 4, 2017, the district court denied Father's motion; it found no indication that Mother intended to move without giving appropriate written notice.

On August 21, 2017, Mother moved to "Modify Child Custody, Parenting Time and for an Order Allowing Respondent and the Minor Children [sic ] to Relocate." Mother explained that she received a job offer in the Los Angeles, California, area, she had purchased a house there as well. She sought the court's permission to move S.B. with her to California and amend the parenting plan so that Father's parenting time was primarily over long holidays and summer breaks, as well as occasional weekends. Mother argued that this was a better arrangement for S.B. than the current plan that required S.B. to transition between Mother's and Father's homes multiple times per week. Mother argued that she and S.B. had more family and friends in Los Angeles than in Johnson County, Kansas, that S.B. would attend better schools in California, and that S.B. would enjoy greater exposure to her family's Asian cultures in Los Angeles. Further, Mother alleged that S.B. was afraid of Father and was not well bonded to him. Moreover, she asserted that Father and the Paternal Grandmother were abusive.

Father opposed Mother's motion. The district court held a series of hearings on the motions in September 2017.

At the September 12, 2017 hearing, the Paternal Grandmother, the Maternal Grandmother, the Maternal Grandfather, and the director of the Kansas Board of Healing Arts, Kathleen Selzler Lippert, testified.

The Paternal Grandmother testified that S.B. had a good relationship with her as well as with Father. She testified that in 2015, DCF investigated allegations that she had abused S.B., but that DCF found no abuse. She further testified that before Mother and Father divorced, she had observed Mother hit Father. She also stated that she thought Mother told S.B. lies to discourage S.B. from feeling close to her Father and her.

The Maternal Grandfather testified that a move to Los Angeles would be beneficial for S.B. because she has extended family in the area. He stated that when Father came to pick S.B. up from Mother's home, Father would be angry and have a temper "about 75 percent" of the time. He further stated that often S.B. did not want to go with Father. He also testified that S.B. complained that her Paternal Grandmother yanked her ear, spanked her, or hit her. He stated that S.B. was afraid of Father and her Paternal Grandmother. He stated that Father did not ensure S.B. bathed and practiced good hygiene while in his care. He testified that with the frequent custody changes under the current custody plan, S.B. was often tired at school.

The Maternal Grandmother testified that Mother's boyfriend lived with the family for about a year before breaking up in the spring of 2017. She testified that S.B. often had nightmares after she came back from Father's house. She testified that S.B. complained about her Paternal Grandmother hitting her and pulling her ear as punishment.

Selzler Lippert testified that as of September 5, 2017, Mother had not applied for a license to practice medicine in Kansas. She stated that once an applicant has submitted all the necessary materials to apply for a medical license, it usually takes the Board about three to seven days to issue the license. She testified that being board certified was not a requirement for medical licensure. She stated that it can take two months or more for applicants to complete their application, however, because they have to submit a substantial amount of documentation.

The next day, Father testified, as did S.B.'s therapist, Elizabeth Miranda. Father stated that the current plan required him to pick up S.B. from Mother's house and that S.B. was frequently not ready on time. He testified that Mother unilaterally decided what activities S.B. could participate in and kept him from being listed as an authorized parental contact at S.B.'s school. He stated that Mother tried to isolate him from S.B. as much as possible. He pointed out that he accommodated Mother's requests, for example, by allowing S.B. to attend a Chinese school on Sundays that cut into his parenting time. He further testified that Mother accused him of trying to kidnap S.B., even when he was abiding by the confines of the parenting plan. He stated that his relationship with S.B. was "excellent." He also testified that neither he nor his mother ever abused S.B. He proposed that an "every-other-day parenting schedule" was in S.B.'s best interests.

Father maintained that if S.B. were to move to California with her mother, his relationship with his daughter would suffer. He testified that the move was not in S.B.'s best interests because she would miss out on the bond with him and her Paternal Grandmother. He admitted that he made enough money to afford to travel to California to visit S.B. He admitted that he had not exercised all of his parenting time under the current plan, but he explained that was because he tried to compromise with Mother and accommodate her requests for activities and parenting time. He admitted that he never met with S.B.'s therapist between 2013 and 2017, and that the full extent of his communication with the therapist was four or five e-mails.

Miranda testified that she served as S.B.'s therapist from 2013 until the time of the hearing with about a year-long gap for most of 2014. She testified that she introduced herself to Father via e-mail in 2013 but that she did not hear anything from Father until he e-mailed her in June 2015. She stated that she met with Father in June 2015 to discuss concerns about how to handle S.B.'s transitions from one parent's home to the other with as little stress for S.B. as possible. She testified she next met with Father in May 2017 to discuss Father's concerns that the GAL had spoken with her and to address purported concerns about his mother's relationship with S.B. She testified that Father also e-mailed her again in December 2015 expressing concerns about parental alienation by Mother. Finally, she stated that although she had reached out to Father about doing joint therapy sessions with S.B., Father did not do so until the week before the hearings.

Miranda testified that she called the DCF hotline in 2015 because S.B. had expressed that her Paternal Grandmother yelled at her, hit her, and pulled her hair, but that Father protected her. Miranda testified that at times, S.B. confided that she thought her Paternal Grandmother was grumpy or mean and that "daddy [didn't] like [S.B.]" Nevertheless, Miranda testified that as S.B. got older, her perspective shifted and she began to say things like "daddy is nice." She testified that Mother and Father engaged in significant conflict during transitions, and this caused anxiety for S.B. She testified that as recently as the summer of 2017, S.B. indicated that she felt happy and loved at Mother's home, but she was scared at Father's home. She also stated that S.B. "does not like going back and forth" between her parents' homes and "does not like going to daddy's house." Miranda testified that S.B. expressed excitement about the possible move to California, in part because she thought she would no longer have to go back and forth between Mother and Father.

On September 28, 2017, Mother took the stand. Mother testified that S.B. is strongly bonded with her. She stated that when she first came to the United States in 2004, she lived in Los Angeles for three and a half years and she still had family and friends in the area. She testified that she frequently attended S.B.'s school events and extracurricular activities, and that Father rarely did. She stated that Father frequently missed large blocks of his parenting time because he traveled internationally. She testified that beginning in the spring of 2016, Father requested that Mother cede her parenting time to him and threatened to not allow S.B. to participate in Chinese school unless she did so.

Mother's proposed move was animated largely by the prospect of a new and better paying job in California. Until April 2017, Mother worked at the Leavenworth VA Hospital; Mother lost that job because she was not a citizen. Mother testified that she did try to keep working at the VA so that she could stay in Kansas. Nevertheless, the only option she was given was to work in Topeka with a schedule that would barely allow her to see S.B. She stated that many other local jobs required board certification, which she did not have. She testified that she was moving to California for a job opportunity and a stronger support system of friends and family. Mother admitted that she did take S.B. to see the house she purchased in California before obtaining permission to move S.B. to California.

Mother stated she believed that moving to California would help alleviate S.B.'s stress and the physical symptoms of her stress like her eczema. Specifically, Mother testified that a parenting plan with longer periods of time with each parent and fewer transitions would be better for S.B. Mother argued that even if S.B. moved to California, Father would still enjoy about the same amount of parenting time that he did under the current plan. She also testified that the city she wanted to move to has a better school district than the one S.B. currently attended.

Mother also requested an amendment to the parenting plan such that the Paternal Grandmother could not be left alone with S.B.; Mother stated that this was necessary because the Paternal Grandmother inappropriately used physical discipline.

During cross-examination, Father's attorney highlighted that Mother, not S.B., was the first person to tell Miranda about the alleged abuse. The attorney also sought to cast doubt on her allegations of abuse toward S.B. by pointing out that despite her concerns, Mother continued to allow S.B. to go to Father's house for his parenting time. Mother admitted that she never told Father that her ex-boyfriend lived with her for about a year, even though the ex-boyfriend lived in the house when S.B. was there. Father's attorney suggested that Mother wanted to move to California because her ex-boyfriend lived in California and his family lived in Los Angeles; Mother denied this.

When S.B.'s GAL questioned Mother, she stated that if the judge denied her request to move with S.B., she would try to stay in Kansas but was not sure if she could make it work jobwise.

During closing, the GAL stated that, were the court to decide only on Father's motion for evenly divided parenting time, he would recommend against it. The GAL stated that under the law, the judge should consider five factors to determine if he should grant Mother's motion to move to California with S.B.

The first factor was the potential impact of the move on S.B.'s "emotional, physical, or developmental needs." The GAL stated that S.B. had a clear desire to stay with Mother, not Father. The GAL stated that "Father had been more of a parent of convenience, less of an involved parent." He pointed out that S.B. was not really bonded with Father. The GAL also stated that Mother would make more money at the job in California which would provide a "trickle-down advantage" for S.B.

The second factor was the "soundness and the motive of the custodial parent's decision to relocate." The GAL stated it was clear that Mother was motivated by her better job prospects. Nevertheless, the GAL also said that it was a "question mark" as to whether Mother was motivated in part by a desire to get back with the ex-boyfriend who formerly lived with her, who was at that time living in California. He testified that "the move is based on mom's desire for a new job, period. The rest of it is really trying to rationalize whether that decision is in the best interest of the minor child."

The third factor was the availability of a reasonable alternative parenting schedule and whether Mother would comply with the parenting plan after moving. The GAL stated that Mother's proposed parenting plan "would devastate a relationship between Dad and the child," but he added, "The flip side is, how do you devastate something that may not be there right now?" Further, the GAL noted that Mother and Father had severe issues with exchanges and said, "if we're having exchanges here in Kansas City-issues-how are these exchanges going to happen when we're putting the child on a plane from California to Kansas or vice versa?"

The fourth factor was "what the detrimental effect of the move on a child and a noncustodial parent would be." The GAL stated that Father had recently taken steps to improve his relationship with S.B., but the GAL noted he was not sure if Father's efforts were earnest and would continue, or if they were just reactionary because of Mother's motion to move S.B.

The fifth factor was "the dynamics of the parent-child relationship prior to the move." The GAL testified that according to Mother, Miranda, and S.B., S.B. had no real relationship with Father. Nevertheless, the GAL stated, "I've seen the child, in my visits, laying on Dad in my-in my lobby waiting to meet with me. Hugging, kissing each other. For them to have no connection, I don't see it." The GAL acknowledged that Mother had done most of the parenting, and Father "has not tried to be involved." The GAL stated that Father's lack of a relationship with S.B. was likely due in part both to his lack of desire and Mother's lack of support for the relationship. Ultimately, the GAL recommended that the court allow Mother to move with S.B., stating that it was a "55/45 type of decision" in favor of the move.

On February 7, 2018, the district court issued its decision. The district court wrote that it found Mother's testimony "was often not credible or persuasive" when she addressed the conflict between her and Father. It further wrote the following: "Contrary to mother's claim of being bullied, she has no problem standing up to father, communicates in a dictatorial manner and often manipulates scheduling and decision-making to father's detriment." Further, the court wrote, "Father's parenting role and record leaves much to be desired" because of Father's lack of involvement. Nevertheless, the court noted that Father seemed to be making efforts towards creating a stronger bond with S.B. Finally, the court noted, "Additionally and significantly, the GAL surreptitiously observed [S.B.] with father in his office waiting room. He told the Court that [S.B.] was 'all over him' with affection and that they obviously had a bond, even if not as close as with mother."

The district court ruled that Mother could not move S.B. to California. The district court gave nearly five pages of reasons for this ruling. In part, the court stated:

"While many of the above factors could be discussed in relation to the facts of this case, three factors weigh most heavily in the Court's decision: 1) mother's questionable motive in moving; 2) her history of thwarting father's relationship with [S.B.]; and 3) thus each parent's ability or willingness to respect and appreciate the bond between [S.B.] and the other and support that relationship in the future. The evidence relating to these three factors overlaps considerably but it all cuts against the proposed move being in [S.B.]'s best interest."

Mother timely appealed.

Did the District Court Abuse Its Discretion by Deciding the Move Was Not in S.B.'s Best Interests?

Our Supreme Court has frequently reiterated:

" '[w]hen the custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. [Citations omitted.]' " In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (quoting In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 [1998] ).

Abuse of discretion review therefore applies to the district court's denial of Mother's motion to move S.B. to California. When reviewing for abuse of discretion, this court will not disturb the district court's decision unless the decision is based on an error of law or fact, or if no reasonable person would agree with the decision. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015). The party asserting an abuse of discretion bears the burden to show that the district court abused its discretion. In re P.J. , 56 Kan. App. 2d 461, 466, 430 P.3d 988 (2018).

Mother argues that the district court abused its discretion by applying the wrong legal standard. According to Mother, she "lost her motion principally because the court found that she committed a major transgression against [Father]'s rights as a father" by cohabitating with her ex-boyfriend and not telling Father about it. Mother argues that the district court did not conduct the appropriate best interests analysis, but rather "relied on its frustration with [Mother] as she co-parented with [Father]." This argument is flawed.

Under K.S.A. 2018 Supp. 23-3201, district courts shall "determine legal custody, residency and parenting time of a child in accordance with the best interests of the child." K.S.A. 2018 Supp. 23-3203 provides a nonexhaustive list of factors district courts shall consider when determining custody, residency, and parenting time. These factors include:

- "Each parent's role and involvement with the minor child before and after separation" K.S.A. 2018 Supp. 23-3203(a)(1) ;
- "the emotional and physical needs of the child" K.S.A. 2018 Supp. 23-3203(a)(5) ;
- "the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent" K.S.A. 2018 Supp. 23-3203(a)(8) ; and
- "the ability of the parties to communicate, cooperate and manage parental duties" K.S.A. 2018 Supp. 23-3203(a)(10).

Here, both Mother and Father sought to amend the existing parenting plan. Father wanted to amend the plan to give him more parenting time; Mother wanted to amend the plan so that she could move S.B. to California. The district court denied Mother's motion to move S.B., but it did modify the parenting plan.

As pointed out earlier, the list of factors used to determine a child's best interests is nonexhaustive. See K.S.A. 2018 Supp. 23-3203(a). Further, under K.S.A. 2018 Supp. 23-3222(c), the statute controlling changes in a child's residence states the following:

"In determining any motion seeking a modification of a prior order based on change of residence or removal as described in (a), the court shall consider all factors the court deems appropriate including, but not limited to: (1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having rights granted under this article; and (3) the increased cost the move will impose on any party seeking to exercise rights granted under this article." (Emphasis added).

Thus, both best interests analysis under K.S.A. 2018 Supp. 23-3203 and the relocation analysis under K.S.A. 2018 Supp. 23-3222(c) are nonexhaustive and the district court can correctly consider all "appropriate" factors when conducting these analyses.

Here, the district court spent seven pages explaining the applicable law, treatises, and model statutes it relied on to reach its conclusions. The district court correctly identified K.S.A. 2018 Supp. 23-3201 et seq. as the controlling child custody statutes. The district court also looked to the American Academy of Matrimonial Lawyers' model relocation statute and the American Bar Association's Family Law Section model Relocation Act. The district court then laid out 16 conclusions. The conclusions included:

"46. However all cases are highly dependent on their individual facts. While many of the above factors could be discussed in relation to the facts of this case, three factors weigh most heavily in the Court's decision: 1) mother's questionable motive in moving; 2) her history of thwarting father's relationship with [S.B.]; and 3) thus each parent's ability or willingness to respect and appreciate the bond between [S.B.] and the other and support that relationship in the future. The evidence relating to these factors overlaps considerably but it all cuts against the proposed move being in [S.B.]'s best interest.
....
"55. Mother's primary motive in moving as it relates to the minor child, is to get herself and [S.B.] away from father. Mother thinks that 'all the back and forth' and [S.B.]'s anxiety over 'transitions' are bad for her. She thinks that these will interfere with [S.B.]'s schooling in the future; that she won't have enough time to get her homework done. Mother did not articulate how attending school from two parents' homes will be different or more difficult for [S.B.] than other children of divorced parents. She just does not seem able to envision father as playing a role in [S.B.]'s childhood education. Generally, mother does not believe father knows how to take care of [S.B.]. She testified that [S.B.] came back from a trip with father rubbing her genital area and having nightmares (although she never discussed this with him). Mother testified that [S.B.] 'dreads' going to her father's house. She testified that after parenting time with father [S.B.] struggles emotionally at school; that she is withdrawn and tired. She blames [S.B.]'s two low test scores of 80% and 83% on time with father. She does not think father can prepare [S.B.]'s schoolwork or backpack for her. She claims that father does not bathe [S.B.] and that she returns from his house unkempt and wearing dirty clothes; that she is 'pretty suffering' after a night at father's. She does not believe father knows to put warm clothes or a coat on [S.B.] in colder weather. She believes that being away from the stress of parenting time with father for extended periods of time is the only thing that will clear up [S.B.]'s eczema.
"56. The Court does not find valid evidence that much, if any of this is true or valid, except that [S.B.] experiences some anxiety over parenting time with father. The Court believes this is more accurately described as anxiety over the dysfunction and exchanges between her high conflict parents and her preference for time at mother's house. The Court does not doubt that [S.B.] is fully aware that her mother does not want her to spend time with father. Also that mother does not believe she will be safe or well cared for with him. She knows her grandparents physically carried her away from her father when he tried to pick her up at school for a weekend trip. She knows she is not allowed to take her backpack or her things to father's house or even wear her clothes there. Mother's contempt for father is palpable. She more than implied in testimony that father's negligent medical care of his own father contributed to his death. When asked directly, she could not testify that he is a loving father. Mother does not really want [S.B.] to believe that father is loving or competent either. Her testimony to the contrary is merely lip service.
"57. Because mother believes that time with father is against [S.B.]'s best interests, she has made numerous attempts to thwart father's parenting time, some of which are mentioned above. Additionally, she has significantly undermined father's role in [S.B.]'s life both through her attitude toward him and introducing another father figure into [S.B.]'s life without father's knowledge. On two occasions she combined the two and deceptively interfered with father's parenting time so [S.B.] could do an activity with [Mother's ex-boyfriend]."

Mother is correct that the district court did discuss Mother's cohabitation with her ex-boyfriend and the fact that she lied to Father about it. Mother is incorrect, however, that this constituted application of an incorrect legal standard. Indeed, the court itself stated that the three primary reasons animating its order were "(1) mother's questionable motive in moving; (2) her history of thwarting father's relationship with [S.B.]; and (3) thus each parent's ability or willingness to respect and appreciate the bond between [S.B.] and the other and support that relationship in the future."

In context, it is clear that the district court brought up the ex-boyfriend as an example of Mother withholding from Father material information about S.B.'s life and wellbeing. The court found that Mother allowed an unrelated man to live in her house with S.B., and lied to Father about it. When S.B. told Father about the man and Father asked Mother directly about the man, Mother misrepresented the truth by saying the man was a "helper." The district court here reasonably concluded that this behavior demonstrated an unwillingness on Mother's part to cooperate in coparenting S.B. with Father, and Mother's desire to obstruct Father's coparenting rights.

The district court also cited the issue as an example of Mother's lack of credibility. In doing so, the district court ultimately concluded: "The Court cannot conclude that [the ex-boyfriend] plays a role in mother's proposed move. The Court does conclude that mother is not credible when discussing the purchase of her house or her relationship with [the ex-boyfriend]."

District courts are uniquely positioned to assess a witness' credibility because they are privy to the witness' demeanor at trial. As with any credibility assessment, a district court judge must weigh surrounding facts and circumstances along with a witness' testimony. This weighing of the evidence process is something district judges frequently must do. Thus, appellate courts do not reweigh evidence or reassess a witness' credibility. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc. , 268 Kan. 33, 34, 991 P.2d 406 (1999). Here, the district judge concluded that Mother's testimony about S.B.'s best interests was not credible. As a result, this court cannot reweigh or reassess the district judge's credibility determination.

Finally, Mother makes a large point of the fact that the district court wrote that its "standard parenting plan orders in all cases include a prohibition against another adult moving into a child's home without 30 days' notice to the other parent, including the person's identity, birthdate and social security number." Mother is correct that S.B.'s parenting plan imposed no such requirement. Nevertheless, the district court was not penalizing Mother for violating a clause that did not exist, as she claims on appeal. Instead, it stated that it includes this requirement in nearly all parenting orders in order to demonstrate how important it is that a parent have knowledge of other adults living with his or her child. This is a common sense requirement insofar as a child's safety and wellbeing is concerned.

Mother has not satisfied her burden to show that the district court used an erroneous legal standard. The district court's consideration of her cohabitation with her ex-boyfriend was not application of an erroneous legal standard but, instead, the court giving an example of Mother's failure to "respect and appreciate the bond between child and the other parent and to allow for a continuing relationship between the child and the other parent." This is one of the statutory factors listed in K.S.A. 2018 Supp. 23-3203(a). Further, because a district court shall "consider all factors the court deems appropriate" when ruling on a motion to relocate a child, the district court here did not err by considering Mother's decision to let her ex-boyfriend live in her home with S.B. for a year and lie about it to Father. See K.S.A. 2018 Supp. 23-3222(c).

Did the District Court Err by Allowing the GAL to Act as a Witness?

Mother originally raised both issues relating to the GAL as a single argument on appeal. As Father correctly identified, these are separate issues subject to separate analysis. In her reply brief, Mother agrees that these are separate issues. The first GAL argument that Mother raises is that the district court erred by allowing the GAL "to act as a witness." We consider this argument waived because Mother failed to adequately brief this issue.

The only relevant portion of Mother's brief states:

"We do have evidence that the court considered statements by the GAL as testimony from the GAL when it relied on the GAL. In one of the few points, the court coined as significant: 'Additionally and significantly, the GAL surreptitiously observed [S.B.] with father in his office waiting room. He told the Court that [S.B.] was 'all over him' with affection and that they obviously had a bond, even if not as close as with mother.' (R. Vol. l, p. 180.)
"It was these observations that supported Rajat's claims: 'The Court finds from the evidence and/or observations of the GAL that all of father's above allegations are essentially true, as discussed in more detail below.' (R. Vol. l, p. 171, ¶ 7.) This undoubtedly is the court accepting the GAL's statements as evidence, not as a recommendation."

In her brief, Mother failed to argue how this statement was error and provided no authority to support her assertion that the statements constituted error. Additionally, Mother failed to explain how the GAL's conduct resulted in prejudice to her; indeed, the GAL ultimately recommended in favor of Mother's motion to relocate to California. Although Mother later tried to substantively argue the issue in her reply brief, this is insufficient to preserve the issue for our review. See Sierra Club v. Mosier , 305 Kan. 1090, 1134, 391 P.3d 667 (2017) (" 'An appellant may not raise new issues in a reply brief.' "). Accordingly, we do not reach this issue on the merits.

Does the District Court's Order That the Parents Waive Ex Parte Contact Between the Court and the GAL Constitute Judicial Misconduct?

Mother's second GAL argument is that the district court erred by including in the order appointing a GAL a clause that stated both parties waived any objection to ex parte contact between the court and the GAL. The challenged clause reads as follows: "The parties agree to waive any ex-parte communications between the Guardian Ad Litem and the Court. Counsel for the parties agrees to allow the Guardian Ad Litem to have direct contact/communications with their client(s)."

Mother admits that the order she challenges was issued on March 8, 2017, nearly a year before her appeal in this case. She admits that she did not timely object to the ordered waiver. Mother also admits that "there is no evidence in the record that the 'waiver' ever resulted in ex parte communications" but, she argues, "the order created the appearance of impropriety."

Nevertheless, Mother plainly admits that there is no evidence in the record that any ex parte communications transpired between the GAL and the district court. Thus, Mother has failed to show prejudice of her substantial rights. As a result, we reject this argument.

Attorney fees

After oral arguments in this case, both Mother and Father moved for attorney fees under Supreme Court Rule 7.07 (2019 Kan. S. Ct. R. 50). Both parties note that under Supreme Court Rule 7.07(b)(1) and K.S.A. 2018 Supp. 23-2715, this court has the ability to award attorney fees "as justice and equity require." K.S.A. 2018 Supp. 23-2715. Neither party here makes a compelling case that "justice and equity" require an award of fees in this case.

Mother makes no arguments about justice and equity. Additionally, this court is generally hesitant to award attorney fees to a party that does not fully prevail on appeal. Richardson v. Murray , 54 Kan. App. 2d 571, 588, 402 P.3d 588 (2017), rev. denied 307 Kan. 988 (2018).

Father argues that "a substantial portion" of his appellate fees were caused by Mother's requests to modify the record and request for oral argument. Review of his attorney fee affidavits shows that only a few hours were explicitly identified as spent on dealing with "exhibit issues" or "retriev[ing] exhibits." This does not strike us a significant hardship or unusual demand beyond the scope of typical appellate practice. Thus, we do not find that justice and equity require an award of attorney fees for Father.

Accordingly, both Mother's and Father's requests for attorney fees are denied.

Affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Dominic Joseph WILLIAMSON, Appellant.
    Nos. 120 452 120,453
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    MEMORANDUM OPINION
   Per Curiam:

Dominic Williamson appeals the sentence he received after pleading guilty to aggravated battery, theft, and fleeing or eluding a police officer. Williamson objects to the district court's order that he begin paying his restitution while serving his prison sentence. But Williamson recognizes that the district court may order both restitution and the terms of its repayment, and we find that there was no abuse of discretion in ordering Williamson to begin paying restitution while in prison.

This appeal involves two cases that we have consolidated for appeal. In 2018, Williamson pleaded guilty to one count of aggravated battery and one count of theft in case No. 18CR1113 and guilty to one count of fleeing or attempting to elude a police officer in case No. 18CR1751. Based on Williamson's criminal-history score of A, the most serious criminal-history score, the district court sentenced Williamson to 34 months in prison for aggravated battery and 12 months in jail for theft, which Williamson would serve concurrently. The court sentenced Williamson to 17 months in prison for fleeing and eluding, to be served consecutively to the 34-month sentence in the other case. As part of Williamson's plea agreement, he "agre[ed] to pay restitution in an amount to be determined prior to sentencing or by hearing to the Court."

The district court ordered Williamson to pay $18,856.71 in restitution and set collection to begin during Williamson's prison sentence. Although Williamson didn't object to the amount of restitution the court ordered, he did object to the order that restitution be collected while in prison because "whenever you're making [$]2.25 a day, there's really no incentive ... to work during incarceration."

The district court responded that restitution "helps you[ ] make yourself right with the victim [and] you can go ahead and build some work ethic and also, start paying a little bit on restitution so you don't owe as much when you get out."

Williamson appealed to this court, arguing that the district court erred by ordering collection of restitution while he's in prison because the money he will earn there won't cover the amount of restitution ordered. He says the court should have ordered collection of restitution only after he finishes serving his sentence.

But the amount of restitution that a defendant is ordered to pay and the terms of repayment fall within the discretion of the district court, so we will only review the restitution order for an abuse of discretion. Puckett v. Bruce , 276 Kan. 59, 63, 73 P.3d 736 (2003). And the Kansas Supreme Court has determined that the sentencing court has the discretionary authority to order a convicted person to pay restitution while serving the prison sentence. State v. Alderson , 299 Kan. 148, Syl. ¶ 1, 322 P.3d 364 (2014). So the question before us is whether the district court abused its discretion by making that order in Williamson's case. A court abuses its discretion if its decision is based on factual or legal error or no reasonable person would agree with it. State v. Schaal , 305 Kan. 445, 449, 383 P.3d 1284 (2016) ; State v. Brown , 51 Kan. App. 2d 876, 879-80, 357 P.3d 296 (2015).

Williamson doesn't suggest that the district court's decision was based on either an error of fact or law. In our view, a reasonable person could agree with the district court's explanation that Williamson should start paying restitution while in prison to reduce the amount he owes at the end of his prison sentence. Williamson has not shown that the district court abused its discretion in ordering Williamson to begin paying restitution while incarcerated.

Williamson also claims that the district court erred by denying Williamson's departure motion and imposing the presumptive sentence of 34 months in prison for aggravated battery and 17 months in prison for fleeing and eluding. But we don't have jurisdiction to consider the appeal of presumptive sentences under our state's sentencing guidelines, and these were presumptive guidelines sentences. See K.S.A. 2018 Supp. 21-6820(c)(1) ; State v. Huerta , 291 Kan. 831, 835, 247 P.3d 1043 (2011) ; State v. Miller , No. 116,572, 2017 WL 2022717, at *1 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1327 (2017).

On Williamson's motion, we accepted this appeal for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). We have reviewed the record available to the district court, and we find no error in either the district court's restitution order or the sentence Williamson received.

We dismiss for lack of jurisdiction Williamson's challenge to the denial of his departure motion and the imposition of his prison sentences, and we affirm the district court's judgment.


author: Per Curiam: Arnold-Burger, C.J., concurring:

text:
    STATE of Kansas, Appellee, v. Kaila Marie PRICE, Appellant.
    No. 119,411
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019.
    MEMORANDUM OPINION
   Per Curiam:

Defendant Kaila M. Price appeals her conviction for driving under the influence, a misdemeanor violation of K.S.A. 8-1567, following a bench trial to the Lyon County District Court on stipulated facts. On appeal, Price argues the district court erred in denying her pretrial motions to exclude statements she made to law enforcement officers and the results of a blood test showing her to be over the legal blood-alcohol limit, and she says without that evidence her conviction must be reversed. Price also contends the DUI statute is unconstitutionally vague by describing one form of proscribed conduct as "incapable of safely driving." We find those points to be unavailing and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution of Price arose from a single-car wreck that happened sometime before 2:45 a.m. on June 4, 2016, on a rural road in Lyon County. Angelica Prestier and Raymond Peterson were driving in the vicinity when they saw Price walking along the road. They quickly came upon a sedan askew on the side of the road. So they stopped. The car had substantial damage to the driver's side. Nobody was in or around the vehicle. Connecting Price and the car, Prestier and Peterson took on the role of Good Samaritans. Prestier remained with the car and called 911, while Peterson drove back to get Price. He found Price, and they returned to the wreck.

In the meantime, Lyon County Deputy Steve Dall received a dispatch call at 2:46 a.m., arrived at the wreck, and spoke with Prestier. An emergency medical crew also responded. When Peterson returned to the scene with Price, an emergency medical technician examined Price and treated her for what appeared to be minor injuries to her forehead. He then turned Price over to Dall, who questioned Price while she sat in his patrol car. About 40 minutes later, Dall informed Price she was under arrest and placed her in handcuffs. During that time, at least two other officers had arrived and participated in the investigation of the mishap. At least one of them joined in the questioning of Price for a time. And one of the officers found a half empty bottle of vodka in the car.

After Dall drove Price to the law enforcement center, she declined to perform any field sobriety tests and refused a breath test. Dall then obtained a search warrant for a blood draw from Price. Dall took Price to a nearby hospital where medical personnel obtained a blood sample from Price at about 6:40 a.m. A later analysis of the sample showed Price had a blood-alcohol concentration of .17.

The State charged Price with driving under the influence in violation of K.S.A. 2015 Supp. 8-1567, as a second offense misdemeanor, and transporting an open container of alcohol, a misdemeanor violation of K.S.A. 2015 Supp. 8-1599. Price, through her lawyer, filed numerous pretrial motions. Pertinent to the appeal, Price sought to exclude as trial evidence any statements she made to Deputy Dall on the grounds that his questioning of her constituted a custodial interrogation and he never advised her of her Miranda rights. She also sought to exclude the admission of the blood test results. The district court excluded some of Price's statements but denied the motion to bar the blood test results.

The State revised the DUI charges, so Price faced alternative violations of K.S.A. 2015 Supp. 8-1567 for operating a motor vehicle with a blood-alcohol concentration of .08 or more and for operating a motor vehicle while incapable of doing so safely because of the consumption of alcohol. See K.S.A. 2015 Supp. 8-1567(a)(1), (a)(3). Price waived her right to a jury trial, and she and the State elected to try the case to the district court on stipulated facts. The stipulated factual record for trial consisted of various motions and memoranda previously submitted to the district court, police reports, the toxicology report and other materials related to the blood draw, transcripts from two pretrial hearings, and video recordings from the scene on June 4, 2016, made with cameras in two patrol cars. Based on the stipulated trial record, the district court found Price guilty as charged and imposed sentences consistent with the governing statutes.

LEGAL ANALYSIS

On appeal, Price challenges only her conviction for driving under the influence and raises four points: (1) the district court erred in admitting some of her statements to Deputy Dall; (2) the district court erred in admitting the test results from the blood draw; (3) K.S.A. 2015 Supp. 8-1567(a)(3), proscribing driving a vehicle when unable to safely do so, is unconstitutionally vague; and (4) the State presented insufficient evidence to support her conviction on the alternative DUI charges. As we explain, the first, second, and fourth points are interconnected, so we look at them together to determine what legal relief, if any, may be due Price. We then turn to her constitutional challenge.

Exclusion of Price's Statements

As to the statements, Deputy Dall testified that he never informed Price of her Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Nobody else did, either. Government agents are required to inform a person in custody of those rights to avert impermissibly coercive interrogations and to preserve that person's protection against self-incrimination guaranteed in the Fifth Amendment to the United States Constitution. 384 U.S. at 444-45. A person is considered "in custody" for that purpose if he or she has been formally arrested or has been deprived of his or her freedom in a significant way functionally equivalent to an arrest. Miranda , 384 U.S. at 444, 478-79. The accepted judicial test explores whether, under the circumstances, a reasonable person would conclude he or she could not terminate the questioning and leave. See Stansbury v. California , 511 U.S. 318, 323, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994) ("Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."); State v. Warrior , 294 Kan. 484, 497, 277 P.3d 1111 (2012) ; State v. Fritschen , 247 Kan. 592, 601-03, 802 P.2d 558 (1990) (discussing and adopting the objective standard of evaluating whether a person was in custody for purposes of Miranda ).

A district court should determine whether police questioning amounts to a custodial interrogation requiring Miranda warnings based on the totality of the circumstances. The Kansas Supreme Court has identified a set of factors geared toward making that determination. See Warrior , 294 Kan. at 496-97. The interaction between law enforcement officers and an individual may turn into a custodial interrogation even though it didn't start out that way.

To remedy the failure of law enforcement officers to inform a person in custody of his or her Miranda rights, the district court should preclude the State from using those statements as evidence against that person in its case-in-chief at trial. Oregon v. Elstad , 470 U.S. 298, 317, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) ; United States v. Smith , 831 F.3d 793, 798 (7th Cir. 2016). The remedy, then, does not prohibit prosecution but limits the evidence the government may use in that prosecution.

As we indicated, the district court found that Price was effectively "in custody" when Dall told her she was under arrest and placed her in handcuffs. The district court then suppressed statements Price made after her arrest. Price counters that she was actually in custody when the emergency medical technician delivered her to Deputy Dall at his specific request. There are fair arguments against both of those positions. We mention by way of example that while Price was sitting in the patrol car she asked Deputy Dall when she could leave. Deputy Dall did not respond to her request and simply continued the questioning by asking when she last had anything to drink. That exchange, particularly Deputy Dall's refusal to tell Price that she was free to leave in response to her direct question, would be indicative of a custodial interrogation, although not necessarily conclusively so if considered alone. We do not know what the emergency medical technician told Price when he took her to the patrol car. His explanation, if any, might have caused a reasonable person in Price's position to believe she no longer had the liberty to walk away from the scene.

Rather than wading into an intricate analysis of the circumstances to determine precisely when Deputy Dall's questioning of Price amounted to a custodial interrogation-an exercise that looks to be less than clear-cut-we prefer to wish the entire dispute away. We do that by assuming without deciding that Price is right on this issue even though that's probably incorrect. In turn, based solely on that assumption, we say for forensic purposes all of her statements to Deputy Dall and the other officers should not have been considered among the stipulated facts in the bench trial. That is the legal remedy due Price.

If the remaining evidence contained in the stipulated facts was sufficient to support Price's DUI conviction, then any error the district court may have made in deciding the motion to suppress the statements was legally harmless. We may analyze the evidence for that purpose because Price was tried in the district court on stipulated facts. Reviewing stipulated or agreed-upon facts requires no credibility determinations or weighing of conflicting evidence. We can perform that task just as well as the district court did. See In re Marriage of Stephenson and Papineau , 302 Kan. 851, 854, 358 P.3d 86 (2015).

Exclusion of Blood Test Results

We take more or less the same approach to Price's argument for excluding the results of the blood test. Price offers several reasons the test results should not have been admitted as evidence. First, she says the content of the DC-70 form that Deputy Dall read to her regarding blood-alcohol testing did not conform to the applicable statute. The Kansas Attorney General's Office drafted a modified DC-70 form in light of Kansas Supreme Court rulings finding the statutory language to be improper. We don't plumb the argument itself any further given how we ultimately handle the blood test results. The argument hinges on something of a Catch-22, as Price acknowledges, in that the DC-70 is supposed to mirror the statutory language, but the court had declared that language defective. We assume for forensic purposes the dispute is irrelevant to a blood draw obtained with a search warrant. See K.S.A. 2015 Supp. 8-1001(s) (noncompliance with notice requirements does not affect admissibility of blood test results when sample obtained in conformity with search warrant).

Price also argues the blood test results should be excluded as evidence because the sample was obtained more than three hours after the driver of the car (whoever it was) had the wreck. A dispatcher relayed the incident to Deputy Dall at 2:46 a.m., after Prestier reported it to 911, meaning the mishap occurred before then. The blood draw was taken from Price at 6:40 a.m. Price rests her argument on K.S.A. 2015 Supp. 8-1567(a)(2) that criminalizes driving with a blood-alcohol level of .08 or more "as measured within three hours of ... operating ... a vehicle." She reasons that a test administered outside that three-hour limit should be treated as inadmissible evidence.

Although the results of a test administered more three hours after the defendant has driven do not prove a conviction under K.S.A. 2015 Supp. 8-1567(a)(3), the Legislature has deemed the results to be "other competent evidence" to prove a violation of K.S.A. 2015 Supp. 8-1567(a)(1) for operating a motor vehicle with a blood-alcohol concentration of .08 or higher. See K.S.A. 2015 Supp. 8-1013(f)(1) (defining "other competent evidence" to include results of blood-alcohol testing of samples obtained three or more hours after operation of a vehicle). Price's test result fits within the definition of other competent evidence and, therefore, was admissible in the bench trial to prove the DUI charge under K.S.A. 2015 Supp. 8-1567(a)(1). But Price was also prosecuted for a violation of K.S.A. 2015 Supp. 8-1567(a)(3), and the blood test result was not plainly admissible as to that charge.

Price makes an alternative argument that the test result isn't relevant in the sense of making a material proposition or fact more likely true or less likely true. That is, evidence showing Price's blood-alcohol concentration to be .17 at least four hours after she had been driving does not in and of itself tend to prove her blood-alcohol concentration was .08 or greater when she was driving. Price says that sort of conclusion would require additional evidence from someone with expertise in how the human body absorbs and dissipates alcohol. The stipulated facts include no such evidence. And the evidence on how much Price drank and when is limited, especially if her statements to Deputy Dall are discarded. Again simply for forensic purposes, we assume Price's alternative argument to be correct. Likewise, there was no evidence that Price's blood-alcohol concentration showed or tended to show she would have been unable to drive safely hours earlier when she wrecked the car.

Given our assumption, the stipulated facts do not support Price's conviction for operating a motor vehicle with a blood-alcohol concentration of .08 or greater. But the district court also convicted Price of the alternative charge of operating a motor vehicle when incapable of doing so safely in violation of K.S.A. 2015 Supp. 8-1567(a)(3). To convict under that subsection, the State must prove the defendant drove a motor vehicle and was sufficiently intoxicated that he or she could not do so safely. Here, Price challenges the sufficiency of the evidence, so we construe the stipulated facts in a light favoring the State, as the prevailing party, and give it the benefit of inferences reasonably drawn from those facts. See State v. Jenkins , 308 Kan. 545, Syl. ¶ 1, 422 P.3d 72 (2018) ; State v. Butler , 307 Kan. 831, 844-45, 416 P.3d 116 (2018) ; State v. Pham , 281 Kan. 1227, 1252, 136 P.3d 919 (2006). We then simply ask whether a rational fact-finder could have found guilt beyond a reasonable doubt based on that evidence. Butler , 307 Kan. at 844-45 ; State v. McBroom , 299 Kan. 731, 754, 325 P.3d 1174 (2014).

Sufficiency of the Evidence

We now examine the stipulated facts to determine if sufficient evidence supports Price's conviction under K.S.A. 2015 Supp. 8-1567(a)(3), applying our assumptions excluding the statements Price made to Deputy Dall and giving the blood test results no material weight in determining her intoxication at the time of the wreck. In doing so, we recognize that the elements of even the most serious crime can be proved through circumstantial evidence alone. State v. Jefferson , 297 Kan. 1151, 1167, 310 P.3d 331 (2013). So a conviction may rest solely on circumstantial evidence.

• Prestier and Peterson first saw Price walking alone on a rural road in the middle of the night, and they quickly discovered she was walking away from a car that had recently been wrecked. They saw no one else in the vicinity. Price was barefoot. Law enforcement officers found a pair of sandals in the car. Price was the registered owner of the car. One of the officers determined the driver's seat was positioned consistent with accommodating a person of Price's approximate height.

All of that evidence strongly associates Price with the car. And it circumstantially shows her to have been the driver, particularly the positioning of the driver's seat and the absence of any other candidate.

• After Peterson picked up Price and drove back toward the car wreck, Price asked him to help her hide the car. As they approached the scene and could see the ambulance and the patrol car, Price asked Peterson not to stop and explained she would be in trouble. Peterson told law enforcement officers that Price smelled as if she had been drinking and that he was sure she was intoxicated.

Peterson's observations and opinion as to Price's insobriety are relevant. They support a conclusion Price was intoxicated at that time. See State v. Shadden , 290 Kan. 803, 819-20, 235 P.3d 436 (2010) (Courts commonly receive lay opinion testimony as to whether a person is intoxicated based on the witness' observations of the person's conduct and appearance.). Deputy Dall had the same opinion based on his interaction with Price. His conclusion similarly supports a finding that Price was intoxicated. Although we have assumed that Price's statements to Deputy Dall should be excluded as evidence because of his failure to provide Miranda warnings, that doesn't bar his observations of Price's manner of speech or other aspects of her physical comportment or his opinion of her insobriety based on those observations.

Price's statements to Peterson are admissible, and they are telling. Her first request to Peterson indicated she had firsthand knowledge of the mishap-the request having been made before they were within sight of her car. It also evinced a guilty mind, since there would have been no reason to cover up physical evidence of a benign event. The implication was only redoubled when, upon seeing a patrol car, Price asked Peterson to keep on driving because she would be in trouble if they stopped. That comment amounts to circumstantial evidence that Price believed she had some potential criminal responsibility or liability for what had happened. See State v. Paulson , No. 108,795, 2015 WL 6444314, at *20 (Kan. App. 2015) (unpublished opinion) ("A defendant's efforts to cover up a crime or to evade capture are at least suggestive of guilt on the theory an innocent person wouldn't engage in that sort of conduct."). Given the situation, the obvious liability she feared would be a charge of driving under the influence. Although not a confession, Price's statements to Peterson were damning.

• The stipulated facts concerning the mishap itself are comparatively limited. But they show Price's car apparently skidded off the roadway and struck a tree stump, seriously damaging the driver's side. The car then careened back toward the road. Nothing in the stipulation suggests significant extenuating circumstances that might account for the wreck, such as avoiding a deer or some inanimate obstruction on the road. Deputy Dall's report indicated the weather was rainy and the road was wet. But he stated the rain only became heavy as he drove to the accident scene.

The circumstances of a car wreck may be sufficient to support the requirement of unsafe driving for a DUI conviction under K.S.A. 2015 Supp. 8-1567(a)(3). This court has consistently recognized that wrecks, particularly those that appear to have been caused by extreme driving errors otherwise unexplained by external physical conditions, evince unsafe operation of a motor vehicle. See State v. Alexander , No. 114,729, 2016 WL 5344569, at *4 (Kan. App. 2016) (unpublished opinion) (evidence showed defendant "grossly miscalculated" turn on residential street during day, "way overcorrected," and then "fishtailed," supporting finding of unsafe operation of motor vehicle in DUI prosecution); State v. Swingle , No. 107,856, 2013 WL 4729565, at *4 (Kan. App. 2013) (unpublished opinion) (car left roadway, crossed ditch, and hit fence during day and in good weather-so "[t]he mishap itself is consistent with and would be indicative of an impaired driver"); State v. Bardsley , No. 105,324, 2012 WL 1072759, at *2-3 (Kan. App. 2012) (unpublished opinion); State v. Guinn , No. 94,114, 2005 WL 3527080, at *3 (Kan. App. 2005) (unpublished opinion). A recurrent scenario entails a single vehicle mishap in which the driver inexplicably swerves or skids off the road and strikes an object, often a tree or fence post, disabling the vehicle. We see that scenario played out here.

In short, after discarding Price's statements to Dall and discounting the blood test results, the remaining stipulated facts are sufficient to support a DUI conviction under K.S.A. 2015 Supp. 8-1567(a)(3). Accordingly, any error the district court may have made in considering either some of Price's statements or the blood test results would be harmless. We may make that determination because, as we have said, the prosecutor and Price stipulated to the facts, so assessing their effect entails no credibility determinations or weighing of conflicting evidence. The sufficiency of those stipulated facts to support a conviction presents a question of law. See In re Marriage of Stephenson and Papineau , 302 Kan. at 854 ; Estate of Belden v. Brown County , 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (when controlling facts undisputed, issue presents question of law).

Void for Vagueness Challenge to K.S.A. 2015 Supp. 8-1567(a)(3)

Price contends K.S.A. 2015 Supp. 8-1567(a)(3) is unconstitutionally vague and fails to give potential defendants fair notice of what the Legislature has intended to criminalize. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that criminal statutes sufficiently outline what is proscribed so that reasonable persons may conduct themselves to avoid prosecution and conviction. See United States v. Batchelder , 442 U.S. 114, 123, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979) (constitutional due process requires criminal statute provide fair notice of proscribed conduct); Papachristou v. City of Jacksonville , 405 U.S. 156, 162, 165, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972) ; State v. Watson , 273 Kan. 426, 430, 44 P.3d 357 (2002) (" '[A]n enactment ... [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.' ") (quoting Grayned v. City of Rockford , 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 [1972] ). Likewise, a criminal statute must be sufficiently definite that government agents may apply it without engaging in broad guesswork or arbitrary enforcement. Smith v. Goguen , 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) (constitutional due process "requires legislatures to set reasonably clear guidelines for law enforcement officials").

Price assails the statutory proscription that a driver be under the influence "to a degree" that renders him or her "incapable of safely driving" as impermissibly vague. See K.S.A. 2015 Supp. 8-1567(a)(3). As we understand the argument, Price sees two problems with the statutory language. First, she says "the degree" or level to which the driver must be under the influence is unquantified and, thus, vague. Second, she says being "incapable of safely driving" doesn't adequately define a level of poor driving. We are unpersuaded the statute is constitutionally deficient in those respects.

As to the first, the degree of intoxication under K.S.A. 2015 Supp. 8-1567(a)(3) is not governed by a defined physiological measure, such as a specific blood-alcohol concentration. That's actually the point of the subsection. The proscribed level of intoxication is defined by driving performance. So if persons have been drinking and then operate motor vehicles unsafely, they have violated K.S.A. 2015 Supp. 8-1567(a)(3) regardless of their blood-alcohol concentrations or how many beers or glasses of wine they have consumed. The degree of intoxication measured by blood-alcohol concentration will vary from driver to driver. But a reasonable person-the hypothetical being by whom we measure fair notice-may be expected to understand when his or her faculties have been impaired by one too many drinks and he or she cannot drive safely.

That observation brings us to Price's second attack on K.S.A. 2015 Supp. 8-1567(a)(3) and what "safely driving" a vehicle means and, thus, what amounts to its negative-the incapability of doing so. Safe and safely are commonly understood to entail that which is "free from ... danger" or "prudent" or "cautious." See Webster's New World College Dictionary 1279 (5th ed. 2014) (definition of "safe"). A licensed driver generally may be expected to be familiar with the rules of the road and conduct amounting to moving violations and, in turn, to obey the first and refrain from the second. Cf. Gard v. Sherwood Construction Co. , 194 Kan. 541, Syl. ¶ 6, 400 P.2d 995 (1965) (motorist may assume other motorists will obey rules of road absent particular circumstances undermining assumption); PIK Civ. 4th 121.85 (2012 Supp.) (same). Driving in that manner may be considered prudent, cautious, and safe. A driver unable to do so because he or she is intoxicated fairly should be considered "incapable of driving safely." The standard set out in K.S.A. 2015 Supp. 8-1567(a)(3) is not unconstitutionally vague measured that way. The language provides fair notice both to motorists and to law enforcement officers.

Price's vagueness argument premised on inconsistent or arbitrary enforcement of K.S.A. 2015 Supp. 8-1567 seems particularly wide of the mark. A law enforcement officer must have some articulable factual basis to make a traffic stop. See State v. Thompson , 284 Kan. 763, 773-74, 166 P.3d 1015 (2007). Typically, an officer will initiate a stop because the motorist has committed a traffic infraction of some sort. Upon interacting with the driver, the officer may discover evidence suggesting the driver is intoxicated, e.g., the smell of alcohol, slurred speech in responding to questions, or impaired dexterity in producing a license or proof of insurance. Sometimes, however, a law enforcement officer may observe erratic driving indicative of impairment that does not necessarily amount to a traffic infraction, such as excessive weaving within a lane for no apparent reason or an unusually slow speed or inexplicable changes in speed. In all of those situations, however, the officer identifies factual bases for stopping a driver that undercut some form of arbitrary or otherwise impermissible enforcement.

This case does not fit the traffic stop model. But that's because Price had already stopped as a result of the wreck. Deputy Dall had begun investigating the accident and the abandoned car when he encountered Price. He immediately recognized physical indicators that Price was intoxicated. Again, nothing about that sort of interaction suggests arbitrary enforcement indicative of an unduly vague statute.

Price's argument that K.S.A. 2015 Supp. 8-1567(a)(3) affords insufficient notice to drivers of the forbidden conduct also falters. The Due Process Clause requires reasonable notice commensurate with the purpose of the statute and the nature of the proscribed conduct. Criminal statutes should be drawn with that degree of precision as the subject matter reasonably permits in light of the liberty interests at stake in a prosecution. See Goguen , 415 U.S. at 581 ("There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision."). Mathematical precision is not required. Grayned , 408 U.S. at 110 ; Forbes v. Napolitano , 236 F.3d 1009, 1011 (9th Cir. 2000). Criminal statutes, thus, may be cast in language general enough to take into account various forms of proscribed conduct without running afoul of constitutional fair notice requirements. See Colten v. Kentucky , 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972). Statutory language typically provides fair notice when "the general class of offenses" covered is reasonably described, even though "doubts may arise" regarding conduct at the margins of the proscription. United States v. Harriss , 347 U.S. 612, 618, 74 S. Ct. 808, 98 L. Ed. 989 (1954) ; State v. Williams , 308 Kan. 1439, 1460, 430 P.3d 448 (2018) ; Agnew v. Government of the District of Columbia , 920 F.3d 49, 56 (D.C. Cir. 2019). Nonetheless, criminal statutes that potentially abut constitutionally protected activity, such as free speech or assembly, must be more exacting in their definitions of proscribed conduct because any indefinite margins may inhibit the exercise of a fundamental right. Grayned , 408 U.S. at 108-09.

Consistent with those principles, K.S.A. 2015 Supp. 8-1567(a)(3) provides fair notice of the prohibited conduct-a person drives a motor vehicle after consuming enough alcohol that he or she cannot safely do so. The amount of alcohol is not the point; the degree of impairment is. The core conduct, though described generally, is reasonably defined in understandable terms. In some marginal cases, a given person arguably might be capable of driving safely notwithstanding his or her intoxication. But that possible imprecision in separating the marginally safe from the marginally unsafe doesn't add up to a denial of constitutional fair notice. And the statute does not come close to intruding upon protected First Amendment rights, so the prohibitory language need not be drawn with surgical exactitude.

Moreover, a key purpose of K.S.A. 2015 Supp. 8-1567(a)(3) is to deter drunk driving, so the statute reflects a compelling public policy and exercise of legislative police powers. In upholding DUI checkpoints run in a nondiscriminatory way as constitutionally reasonable, the United States Supreme Court observed that " '[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz , 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). The Court likened the deaths and injuries caused by drunk drivers to losses " 'only heard of on the battlefield.' " 496 U.S. at 451 (quoting Breithaupt v. Abram , 352 U.S. 432, 439, 77 S. Ct. 408, 1 L. Ed. 2d 448 [1957] ). Although traffic fatalities have declined in recent years, drunk driving remains a leading cause of highway deaths and still poses a substantial threat to public safety. Birchfield v. North Dakota , 579 U.S. ----, 136 S. Ct. 2160, 2178, 195 L. Ed. 2d 560 (2016). Those objectives advanced in K.S.A. 2015 Supp. 8-1567(a)(3) weigh heavily on the side of the statutory language. The limited imprecision of the language at its margins can't tip the fair-notice scales the other way to void the statute for vagueness.

Although the Kansas appellate courts have not ruled on the particular challenge Price makes, they have considered the indefiniteness of language in earlier versions of K.S.A. 8-1567 that criminalized simply operating a motor vehicle "under the influence of alcohol." State v. Reeves , 233 Kan. 702, 664 P.2d 862 (1983) ; State v. Campbell , 9 Kan. App. 2d 474, 681 P.2d 679 (1984). Those decisions have some peripheral bearing on the vagueness issue, so we mention them in wrapping up our discussion. Neither opinion, however, offers an expansive analysis directly reaching what we have addressed here.

In Reeves , the court recognized that the statutory phrase "under the influence of alcohol" had been consistently construed to mean a degree of intoxication rendering a person "incapable of safely driving." The court suggested the qualification captured the legislative intent in criminalizing that form of drunk driving. 233 Kan. at 703-04. The Reeves decision arose from the State's appeal of a question reserved on whether juries deciding DUI cases should be given some explanation of the term "under the influence." In responding to the question, the court acknowledged that the statute defined the offense "only generally," so jurors would benefit from "guidance" in an instruction explaining that "under the influence of alcohol" requires that degree of intoxication rendering the defendant "incapable of safely driving a vehicle." 233 Kan. at 704.

About a year later, this court rejected Emery Campbell's argument that his two DUI convictions should be set aside because the phrase "under the influence" was impermissibly vague. Campbell , 9 Kan. App. 2d at 475. The terse discussion does not outline precisely why Campbell believed the statutory language failed to give fair notice of the offense. Relying heavily on Reeves , the court found that the statutory language supplemented with an instruction to the jurors that a defendant could be convicted only if he or she were incapable of safely driving provided sufficient definiteness. 9 Kan. App. 2d at 475.

What the courts endorsed in Reeves and Campbell as judicial gloss-the qualification that a defendant must be incapable of safely driving to be convicted-has since been codified and made part of the offense proscribed in K.S.A. 8-1567(a)(3). And it is that aspect of the statute Price assails as indefinite and, therefore, constitutionally infirm.

We offer several suppositions. We suppose the judicial concern in Reeves and Campbell arose because the phrase "under the influence" at least read literally could apply if a person simply felt the slightest effects of consuming alcohol, say one beer or a glass of wine with dinner awhile before getting behind the wheel. We don't know for sure because neither court really said. We may also suppose both courts were satisfied that amplifying the statutory language with the requirement a person be "incapable of safely driving" fixed the problem with "under the influence" as a notably general proscription. But the opinions offer no concrete explanation of either the defect or why the repair works. We might also suppose the courts did not see the repair itself as injecting some additional vagueness into describing what can be punished as driving under the influence. But nobody challenged the fix itself as impermissibly vague, and the courts didn't address, let alone defuse, the possibility.

But Price has now loosed that arrow. And without relying on suppositions, we can't conclude Reeves and Campbell turn the arrow away. We decline to rest our resolution of this void-for-vagueness challenge on arguably attenuated inferences drawn from brief judicial discussions of a different void-for-vagueness challenge. By the same token, however, Reeves and Campbell lend no support to Price's position.

Having considered the arguments Price has raised on appeal, we find no basis to reverse her conviction and the resulting sentence.

Affirmed.

Arnold-Burger, C.J., concurring:

I concur in the result.


author: Leben, J.:

text:
    STATE of Kansas, Appellee, v. Cheryl Denise MCANALLY, Appellant.
    No. 119,133
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
    Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Leben, J.:

Cheryl McAnally appeals the district court's order that she pay $789,282 in restitution. McAnally had pleaded guilty to one count of felony theft and four counts of felony forgery for embezzling about $1 million from medical staff and hospital bank accounts at Overland Park Regional Medical Center.

The restitution order came after a contested evidentiary hearing. The State first documented the total losses of the medical staff and hospital at $972,273, an amount McAnally didn't contest. The State's accounting witnesses then showed that McAnally had repaid $22,542 by check. And there were $2,370 in cash deposits for which the source couldn't be identified that the State agreed to credit to McAnally.

Some uncertainty arose, though, when a partial analysis of the different accounts showed $158,079 more coming back into the accounts than the State's witnesses could account for. Without looking at other accounts (from which the money had come), the State's accounting witnesses couldn't determine the source of that amount of credits. The district court decided to credit McAnally with the unexplained $158,079 amount as well. The court subtracted these three sums-$22,542 and $2,370 and $158,079-from $972,273 to arrive at the ordered restitution amount, $789,292.

But McAnally testified that she had repaid much more. She estimated that she had returned $500,000, though she did not offer any documentation.

On appeal, she argues that she "testified unequivocally that she had repaid approximately $500,000" and "[t]he State presented no evidence to contradict this testimony." She contends that the district court had to accept her testimony: "Having found that she had paid some money back, no reasonable judge would find that her testimony that she had paid back more money was not credible."

A bold argument-but not a persuasive one. The district court didn't ignore McAnally's testimony; the court found her testimony lacked credibility. That's no surprise in the very case in which McAnally was found to have stolen about $1 million through secret withdrawals over several years. And a court acting as fact-finder can take a person's dishonest acts, like embezzlement and forgery, into account in determining that person's credibility. See K.S.A. 60-421.

So we find nothing wrong with the district court's conclusion that it "[did] not accept the defendant's testimony that she replaced a lot more money back into the account" because "[t]here is just nothing to support that except for her testimony and the Court does not accept that part of her testimony." The trial judge who hears the evidence makes the credibility judgments, not the appellate judges who only review a transcript. See State v. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019).

We still must look at the evidence supporting the district court's decision to be sure that it didn't abuse its discretion in setting the restitution amount. See State v. Martin , 308 Kan. 1343, 1349-50, 429 P.3d 986 (2018). The court would abuse its discretion if it decided based on a legal or factual error or if its decision was so off the mark that no reasonable person would agree with it. City of Leawood v. Puccinelli , 56 Kan. App. 2d 108, 118-19, 424 P.3d 560 (2018). We find no abuse of discretion here.

The State presented six witnesses at the restitution hearing:

• Roxanne Hollingsworth, a records custodian for Bank of America who authenticated bank records;
• Shari Collier, former chief financial officer for Overland Park Regional Medical Center and the person who discovered McAnally's embezzlement scheme;
• Kimberly Forbes Hatley, a certified public accountant and certified fraud examiner for the Hospital Corporation of America;
• Fred Magerkurth, a financial advisor for Wells Fargo who had helped investigate the accounts McAnally used;
• Candace Annette Bridges, a former financial detective with the Overland Park Police Department who had investigated credit-card accounts McAnally had taken out in the name of the medical staff; and
• Jason Novotny, a financial-crimes investigator for the Johnson County District Attorney's office who did an overall review of the financial documents obtained by others.

Collectively, those witnesses documented $972,273 in losses, a figure McAnally didn't challenge. She also agreed that she should receive credit for the $22,542 she had repaid by check and $2,370 of cash deposits.

A large question arose, though, when Novotny testified that $158,079 was deposited into hospital accounts through electronic transfers that Novotny didn't credit to McAnally. Novotny explained that he was looking only for cash or checks that McAnally would have sent; he assumed that the $158,079 represented payments of some kind from a sweep account also held by the hospital or its medical staff. He said that these payments came through an interbank transfer but that he didn't review the accounts from which the funds came to determine the source. Novotny said that since "Mrs. McAnally doesn't have access to the Federal Reserve ... she would not have been able to make the interbank transfer."

Even so, the district court decided to credit McAnally for the additional $158,079 too. That meant that she got credited for the $22,542 she clearly repaid, $2,370 in cash deposits for which no source could be documented, and $158,079 that Novotny testified McAnally had not repaid but the court deducted, anyway, given the uncertainty. The State did not cross-appeal that $158,079 deduction.

In some respects, the State's decision not to contest that deduction on appeal, the State's decision about how fully to develop the accounting records for the restitution hearing, and the district court's decision to give McAnally the benefit of the doubt on the questionable $158,079 sum reflect the practicalities of the case that the parties and the district court understood. McAnally told the court at her sentencing hearing that she had recently qualified for Social Security disability, so the chances seem remote that she could repay either the $789,282 figure set by the court or the $947,361 figure the State was seeking.

Even after much work and hearing from six witnesses called by the State, some questions remained, but it was a reasonable judgment call by the prosecutor not to spend even more resources tracking down all the possibilities. The district court also made a reasonable judgment call by converting any uncertainty into a reduction in the restitution amount in McAnally's favor. The district court did not abuse its discretion in setting the restitution amount.

There is one additional issue in this appeal. It arises in part because this is McAnally's second appeal; we had considered a restitution order once before and had ordered a new restitution hearing. See State v. McAnally , No. 111,196, 2015 WL 5311448 (Kan. App. 2015) (unpublished opinion). Shortly after our opinion in that first appeal, McAnally moved to withdraw her guilty pleas. But the district court held it had no jurisdiction to consider that motion because it wasn't part of what we'd sent back for rehearing.

Both parties agree that the district court was wrong on that point. See State v. Fritz , 299 Kan. 153, 155, 321 P.3d 763 (2014) (holding that a defendant may move to withdraw a plea on remand for resentencing). But there is a question that will arise when the district court hears the motion that the parties do disagree about.

When the motion to withdraw plea is made before sentencing, the defendant need only show "good cause" to withdraw the plea. After sentencing, though, the defendant must show that withdrawal is necessary "to correct manifest injustice." K.S.A. 2018 Supp. 22-3210(d)(2). In McAnally's case, though, the motion to withdraw plea was made after her original sentencing hearing but before restitution was finally determined. McAnally argues that the good-cause standard applies; the State argues that the manifest-injustice standard applies.

We note that the sentencing statute contemplates that restitution will be set "before imposing sentence." K.S.A. 2018 Supp. 22-3424(d)(1). But in this case, like many others, the court chose to handle the sentencing before finalizing the restitution amount. That too is an understandable decision: the parties are often focused mainly on the potential prison sentence, not the amount of restitution to be paid later. And the parties can try to agree on the restitution amount after the stress of the sentencing hearing is behind them.

In Fritz , 299 Kan. at 157, the court faced a similar situation. The defendant had moved to withdraw plea after his original sentencing but before a resentencing hearing ordered by the appellate court. The district court determined that the motion didn't justify setting aside the plea under either the good-cause or manifest-injustice standards, and the Kansas Supreme Court agreed. Neither court determined which standard would apply since it made no difference under the facts of that case.

Based on Fritz , we decline to determine which standard the district court should apply. We simply note that to provide an adequate record should there be another appeal, the district court should make explicit which standard it has applied unless it determines, as the Fritz court did, that the result would be the same under either standard.

We affirm the district court's judgment as to the amount of restitution, reverse its judgment dismissing the defendant's motion to withdraw plea, and remand for further proceedings on the motion to withdraw plea.