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REPORTS

CASES ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF KANSAS

REPORTER:

SARA R. STRATTON

Advance Sheets, Volume 312, No. 2 Opinions filed in October - November 2020

"Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals" (USPS 007-480) are published every month except February, June, August, and October by the State of Kansas, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612- 1598. Periodical postage paid at Topeka, Kansas. POSTMASTER: Send address changes to "Advance Sheets of the Kansas Supreme Court and Kansas Court of Appeals," State Law Librarian, Kansas Judicial Center, 301 West 10th, Topeka, Kansas 66612-1598.

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To order please contact State Law Library @ 785-296-3257 or email [email protected]

Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUSTICES AND OFFICERS OF THE KANSAS SUPREME COURT

_____

CHIEF JUSTICE:

HON. MARLA J. LUCKERT ...... Topeka

JUSTICES:

HON. ERIC S. ROSEN ...... Topeka HON. DAN BILES ...... Shawnee HON. CALEB STEGALL ...... Lawrence HON. EVELYN Z WILSON ...... Smith Center HON. KEYNEN WALL, JR...... Scott City VACANT ......

OFFICERS: Reporter of Decisions………….……….……SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... NANCY DIXON Disciplinary Administrator ...... STANTON A. HAZLETT

(III)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-126

Rules Relating to Language Access

The attached new Supreme Court Rule 1705 is hereby adopted, effective

January 1, 2021.

Dated this 3rd day of December 2020.

FOR THE COURT

MARLA LUCKERT Chief Justice

(IV)

Rule 1705

KANSAS JUDICIAL BRANCH COURT INTERPRETER ORIENTATION

(a) Applicability. The Kansas judicial branch court interpreter orientation is a free, web-based overview of court interpretation skills, best practices, and ethics and the Kansas court system. This rule applies to an interpreter who provides interpretation or translation services in a district court, except for the following:

(1) an interpreter for a person who is deaf, hard of hearing, or speech impaired; or

(2) an interpreter providing interpretation services from a remote location outside of Kansas.

(b) Orientation Registration Information. The Office of Judicial Administration provides registration information for the Kansas judicial branch court interpreter orientation on the Kansas judicial branch website.

(1) An interpreter must not provide an interpretation or translation service in a district court unless the interpreter has completed the Kansas judicial branch court interpreter orientation, except in a case of emergency as determined by the judge.

(2) The requirement of subsection (c)(1) becomes effective six months after the effective date of this rule.

(d) Certificate of Completion; Responsibilities.

(1) Upon completion of the Kansas judicial branch court interpreter orientation, an interpreter may print a certificate of completion. The interpreter must provide a copy of the certificate of completion to a Kansas judicial district's local language access coordinator.

(2) A local language access coordinator who receives an interpreter's certificate of completion must retain it during the period of the interpreter's service. The certificate of completion may be retained in electronic format. The local language access coordinator must promptly forward an electronic copy of the certificate of completion to the Office of Judicial Administration.

(e) Electronic List. After receiving a copy of an interpreter's certificate of completion, the Office of Judicial Administration must note receipt of the certificate of completion on an electronic list available to the district courts. The notation on the electronic list is verification that the interpreter has completed the Kansas judicial branch court interpreter orientation.

(f) Not a Substitute for Qualification or Oath. The presence of a certificate of completion is not a substitute for a judicial determination of an interpreter's qualifications under K.S.A. 75-4353 or the taking of an interpreter's oath under K.S.A. 75-4354

(V)

IN THE SUPREME COURT OF THE STATE OF KANSAS

Administrative Order

2020-RL-127

Rules Relating to District Courts

The attached new Supreme Court Rule 106A is hereby adopted, effective the date of this order.

Dated this 9th day of December 2020.

FOR THE COURT

MARLA LUCKERT Chief Justice

(VI)

Rule 106A

ACCESSIBILITY OF CHILD IN NEED OF CARE COURT RECORD

(a) Applicability. This section applies to all district court cases filed under the Revised Kansas Code for Care of Children, K.S.A. 38- 2201 et seq.

(b) Definitions.

(1) "Court record" means all contents of a court case file, regardless of physical form, characteristic, or means of transmission, made or received by a district court, including documents and filings; transcripts filed with the clerk; exhibits made part of the court record; and electronic recordings, such as videotapes, tape recordings, or stenographic tapes of other proceedings filed with the clerk.

(2) "Events index" means items listed in a chronological index of filings, actions, and events in a specific case, which may be identifying information of the parties and counsel; a brief description or summary of the filings, actions, and events; and other case information. The events index, also referred to as the register of actions, is created and maintained by the judicial branch only for administrative purposes and is not part of the court record.

(3) "Nonpublic court record" means any court record designated by statute, caselaw, Supreme Court rule, or court order as not accessible to the public.

(1) K.S.A. 38-2209 classifies certain documents and filings in a case filed under the Revised Kansas Code for Care of Chil- dren as constituting the official file or the social file. K.S.A. 38 -2211 identifies persons and entities having access to the official and social files.

(2) The court record in a case filed under the Revised Kansas Code for Care of Children must be designated as a nonpublic court record.

(3) The events index of a case filed under the Revised Kansas Code for Care of Children must not be accessible by the public.

(4) When state or federal law requires disclosure of information in a case filed under the Revised Kansas Code for Care of Children, the information designated by the state or federal law must be disclosed in strict compliance with the law's requirements.

(VII) Kansas Supreme Court Table of Cases 312 Kan. No. 2

PAGE

Building Erection Svcs. Co. v. Walton Construction Co...... 432 City of Kingman v. Ary ...... 408 In re Fuller ...... 310 In re M.F...... 322 In re Murphy ...... 203 In re W.L...... 367 State v. Bowser ...... 289 State v. Daino ...... 390 State v. Dale ...... 174 State v. Davis ...... 259 State v. Heim ...... 420 State v. Herring ...... 192 State v. Lutz ...... 358 State v. Meggerson ...... 238

(VIII) PETITIONS FOR REVIEW OF DECISIONS OF THE COURT OF APPEALS 312 Kan. No. 2

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

Banks v. Spirit Aerosystems Inc...... 120,335 Denied ...... 10/16/2020 Unpublished Brungardt v. Kansas Dept. of 58 Kan. App. 2d Revenue ...... 120,409 Denied ...... 11/24/2020 284 Chalmers v. Burrough ...... 121,108 Granted ...... 11/20/2020 58 Kan. App. 2d 531 City of Shawnee v. Adem ...... 121,328 Granted ...... 11/20/2020 58 Kan. App. 2d 560 Cooper Clark Foundation v. 58 Kan. App. 2d Oxy USA ...... 120,371 Denied ...... 11/24/2020 335 Gould v. Wright Tree Service 120,540 Denied ...... 11/24/2020 Unpublished Hanson v. KCC ...... 119,834 Granted ...... 11/20/2020 58 Kan. App. 2d 82 Hernandez v. Pistotnik ...... 120,228 Denied ...... 11/24/2020 58 Kan. App. 2d 501 In re Henson ...... 120,543 Denied ...... 11/24/2020 58 Kan. App. 2d 167 In re J.S.P...... 118,790 Denied ...... 11/24/2020 Unpublished Kincaid v. Kubota Tractor Corp...... 120,950 Denied ...... 11/24/2020 Unpublished State v. Bowen ...... 121,274 Denied ...... 11/24/2020 Unpublished State v. Clark ...... 118,521 Denied ...... 10/23/2020 Unpublished State v. Claude ...... 121,103 Denied ...... 11/24/2020 Unpublished State v. Corbitt ...... 121,625 Denied ...... 10/16/2020 Unpublished State v. Davidson ...... 119,759 Granted ...... 10/16/2020 Unpublished State v. Davis ...... 120,578 Denied ...... 11/24/2020 Unpublished State v. Euler ...... 119,761 Granted ...... 10/16/2020 Unpublished State v. Genzel ...... 120,602 Denied ...... 11/24/2020 Unpublished State v. Gonzalez ...... 121,142 Denied ...... 11/24/2020 Unpublished State v. Haynes ...... 120,533 Denied ...... 11/24/2020 Unpublished State v. Hinnenkamp ...... 119,125 Denied ...... 10/16/2020 57 Kan. App. 2d 1 State v. Jenkins ...... 121,370 Denied ...... 11/24/2020 Unpublished State v. Johnson ...... 118,455 Denied ...... 11/20/2020 Unpublished State v. Jones ...... 119,764 Granted ...... 11/20/2020 Unpublished State v. Judkins ...... 120,687 Denied ...... 11/24/2020 Unpublished State v. Little ...... 120,214 Denied ...... 11/24/2020 58 Kan. App. 2d 278 State v. Lyon ...... 120,993 Denied ...... 11/24/2020 58 Kan. App. 2d 474 State v. Manuel ...... 121,255 Denied ...... 11/20/2020 Unpublished State v. Montgomery ...... 122,237 Granted ...... 11/20/2020 Unpublished State v. Mulally ...... 119,673 Denied ...... 11/24/2020 Unpublished State v. Mundo-Parra ...... 118,875 Denied ...... 10/16/2020 58 Kan. App. 2d 17 State v. Queen...... 120,643 Granted ...... 10/19/2020 Unpublished State v. Ricke ...... 119,854 Denied ...... 11/24/2020 Unpublished State v. Riechers ...... 118,264 Denied ...... 11/20/2020 Unpublished

(IX)

DOCKET REPORTED TITLE NUMBER DISPOSITION DATE BELOW

State v. Rivas ...... 119,462 Denied ...... 10/23/2020 Unpublished State v. Robison ...... 120,903 Granted ...... 11/20/2020 58 Kan. App. 2d 380 State v. Rozell...... 121,094 Granted ...... 11/20/2020 58 Kan. App. 2d 570 State v. Schmeal ...... 121,221 Denied ...... 11/24/2020 Unpublished State v. Spanta ...... 120,094 Denied ...... 10/23/2020 Unpublished State v. Stewart ...... 120,659 Denied ...... 11/24/2020 Unpublished State v. Williams …………… 120,768 Denied ………………. 11/24/2020 58 Kan. App. 2d 409 State v. Williamson ………… 120,452 120,453 Denied ………………. 10/23/2020 Unpublished State v. Wirths ...... 120,202 Denied ...... 11/24/2020 Unpublished State v. Zapata ...... 120,529 Denied ...... 11/24/2020 Unpublished Stormont-Vail Healthcare v. 58 Kan. App. 2d Sievers ...... 121,109 Granted ...... 11/20/2020 152 Ternes v. Board of Sumner County Comm'rs...... 119,073 Denied ...... 11/24/2020 Unpublished Thoroughbred Assoc. v. 58 Kan. App. 2d Kansas City Royalty Co...... 120,068 Denied ...... 11/24/2020 306 University of Kansas Hospital Authority v. Board of 58 Kan. App. 2d Franklin County Comm'rs ... 120,472 Granted ...... 11/20/2020 367

(X) SUBJECT INDEX 312 Kan. No. 2 (Cumulative Subject Index for 1 and 2. Subject Index for this advance sheet marked with *.

PAGE ADMINISTRATIVE LAW:

Interpretation of Administrative Regulation—Appellate Review. Interpreta- tion of an administrative regulation is a question of law subject to unlimited review without deference to the agency's interpretation. Woessner v. Labor Max Staffing …………………………………………….. 36

APPEAL AND ERROR:

Appellate Court Decision Change in Law—Acts Prospectively. Generally, when an appellate court decision changes the law, that change acts prospectively and applies to all cases pending on direct review or not yet final on the date of the appellate court decision. State v. Lindemuth ……………………………….… 12

Burden on Litigant to Designate Sufficient Record. A litigant who alleges error bears the burden of designating a sufficient record on appeal to show error. State v. Meggerson ………………………………………. 238*

Constitutional Error—Requirement for Harmless Error. A constitutional error is harmless if the State can demonstrate beyond a reasonable doubt the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict. State v. Lindemuth ………………………………………………...…… 12

Issues Waived if Not Briefed. Issues not properly briefed are waived or abandoned. State v. Meggerson ……………………….……………… 238*

APPELLATE PROCEDURE:

Failure to File Petition for Review Bound by Holding of Court of Ap- peals. A party who fails to petition the Kansas Supreme Court for review of a Court of Appeals decision is bound by the holding of that decision. Building Erection Svcs. Co. v. Walton Construction Co. ………..… 432*

ATTORNEY AND CLIENT:

Disciplinary Proceeding—Disbarment. Attorney disbarred following the voluntary surrender of her license to practice law in Kansas. Respondent was suspended in 2012 after the Disciplinary Administrator alleged a violation of KRPC 8.4 for misconduct. In re Van Note …………………………….….….……… 1

— Indefinite Suspension. Attorney was disciplined with indefinite suspension from the practice of law in Kansas for violating numerous rules of the KRPC. Respondent created a serious conflict of interest by accepting illegal drugs in exchange for legal representation and engaging in felonious conduct with his client. In re Fuller …………………………….. 310*

— Order of Disbarment. Attorney was disbarred following the voluntary surrender of his license to practice law in Kansas. At the time of the surrender of his

(XI)

XII SUBJECT INDEX 312 KAN. Page

license, three disciplinary complaints were pending that alleged violations of competence, diligence, communication, termination of representation, cooperation in disciplinary matter, professional misconduct, failure to cooperate with the Disciplinary Administrator, registration obligations, and failure to answer complaint. In re Gibson ……..……………………………………………..….. 125

— Two-Year Suspension. Attorney was disciplined by a two-year suspension and may apply for probation after one year. Respondent’s violations including representing both parties in a business transaction that was not disclosed to a federal bankruptcy court and other related matters involving competence, scope of representation, conflict of interest, independent judgment, and conduct prejudicial to the administration of justice. In re Murphy ………………………………………...………………. 203*

Ineffective Assistance of Counsel Claim—Deficient Performance under First Prong of Strickland. On the undisputed testimony of counsel and the governing law as it has developed at the time of counsel's representation of the defendant, counsel's failure to challenge admission of the defendant's incriminating statements was deficient performance under the first prong of Strickland. Khalil-Alsalaami v. State …………………………………………………..…. 62

— Prejudice Established under Second Prong of Strickland. In this case, when criminal defense counsel's deficient performance enabled the State to present one of the two pillars of its case to the jury, prejudice under the second prong of Strick- land has been established. Khalil-Alsalaami v. State ………………………..…. 62

CONSTITUTIONAL LAW:

Ineffective Assistance of Counsel Claim—Burden on Defendant. A court considering whether ineffective assistance of counsel caused prejudice must ask if a defendant has met the burden of showing a reasonable probability the result of the proceeding would have been different but for counsel's deficient performance. The ultimate focus of inquiry must be on the fundamental fairness of the proceedings and whether, despite the strong presumption of reliability, the result of the proceedings is unreliable because of a breakdown in the adversarial process counted on to produce just results. Khalil-Alsalaami v. State …………………………… 62

Search and Seizures—Prohibition of Unreasonable Searches and Sei- zures under Constitutions. The Fourth Amendment to the United States Constitution and section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. State v. Daino ………….…. 390*

Sixth Amendment Right to Counsel—Two-Prong Strickland Test Applied on Appeal. The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel, and denial of the right can lead to reversal of a jury verdict. Courts consider whether a reversible denial of the right occurred by applying a two-prong test stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

312 KAN. SUBJECT INDEX XIII

PAGE

A convicted defendant must first establish deficient performance, by showing that counsel's representation fell below an objective standard of reasonableness. Then, the defendant must show that the deficient performance prejudiced the defense. Khalil-Alsalaami v. State ……………………...……………………………… 62

COURTS:

Court May Review Hearing Officer's Suspension of License. On judicial review of a hearing officer's order suspending a driver's license, K.S.A. 2019 Supp. 8-1020(p) grants a court the authority to consider and determine any constitutional issue, including the lawfulness of the law enforcement encounter that led to the suspension. And under K.S.A. 2019 Supp. 8-1020(o) through (q) a court may set aside a driver's license suspension order if the driver meets the burden of establishing the encounter was unlawful. Jarvis v. Kansas Dept. of Revenue ……..…..156

Court's Authority of Hearing Officer's Suspension of Driver's License. On judicial review of a hearing officer's order suspending a driver's license, K.S.A. 2019 Supp. 8-1020(p) grants a court the authority to consider and determine any constitutional issue, including the lawfulness of the law enforcement encounter that led to the suspension. And under K.S.A. 2019 Supp. 8-1020(o) through (q) a court may set aside a driver's license suspension order if the driver meets the burden of establishing the encounter was unlawful. Whigham v. Kansas Dept. of Revenue ……………………………………… 147

Panels of Court of Appeals May Depart from Law of the Case—No Lower Court May Circumvent Mandate Rule. While different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court. Building Erection Svcs. Co. v. Walton Construction Co. ………….……… 432*

CRIMINAL LAW:

Aggravated Robbery Convictions Not Multiplicitous In This Case—Two In- dividual Victims. Under the facts of this case, convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with a BB gun, took property in the possession or control of two individuals by force directed at both. State v. Dale ……………………………………………………… 174*

Felony Fleeing and Eluding—Statutory Elements. K.S.A. 2019 Supp. 8- 1568(b)(1) and (b)(2) set out material, distinct elements for committing the felony form of felony fleeing or eluding a police officer. State v. Davis ……... 259*

Felony Fleeing and Eluding Police Officer—Driver's Intent to Avoid Cap- ture. Under K.S.A. 2019 Supp. 8-1568(b)(2), the crime occurs when the driver subjectively intends to avoid capture for a felony. State v. Davis ………. 259*

XIV SUBJECT INDEX 312 KAN. Page

Motion to Suppress Evidence—Appellate Review. Appellate courts employ a two-part process when reviewing a district court's decision on a motion to suppress evidence. The district court's factual findings are reviewed to determine if they are supported by substantial competent evidence while the legal conclusions drawn from the factual findings are reviewed using a de novo standard. State v. Lutz …………………………………….…. 358*

— Deference to Fact Finder in Appellate Review. Deference in appellate review is not to a particular witness but to the fact finder who weighed and evaluated the evidence. State v. Lutz …………………………………. 358*

K.S.A. 21-5415(a)(1) Found to Be Unconstitutionally Overbroad. The provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing for a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad because it punishes conduct that is constitutionally protected under some circumstances. State v. Lindemuth …… . . . 12

Motion to Withdraw Plea for Good Cause—Application of Wrong Legal Standard—Reversal and Remand. When an appellate court determines a district court abused its discretion by applying the wrong legal standard to its consideration of a plea withdrawal for good cause under K.S.A. 2019 Supp. 22- 3210(d)(1), the correct disposition is to reverse the decision and remand the case to the district court with directions to ensure the correct legal standard is applied. State v. Herring …………………………………………………….…….. 192*

— Legal Standard. It is an abuse of discretion for a district court to apply the wrong legal standard when considering a plea withdrawal for good cause under K.S.A. 2019 Supp. 22-3210(d)(1). State v. Herring ………….…………….. 192*

Postconviction Sentencing Modification Appeal . In postconviction sentence modification proceedings there must be a procedural vehicle for presenting an argument to the court. State v. Coleman ……………………. 114

Prosecution after Post-Conviction Appeal—No Double Jeopardy Vio- lation. Neither the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant's post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense. State v. Dale .… 174*

Sentencing—Effect of Alleyne v. United States. The change in law effected in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), does not trigger K.S.A. 2019 Supp. 21-6628(c). The Alleyne Court did not find either the term of imprisonment or the statute authorizing the term of imprisonment to be unconstitutional. State v. Coleman ..…. 114

312 KAN. SUBJECT INDEX XV

PAGE

— Motion to Correct Illegal Sentence. A sentence imposed in violation of the constitutional holding in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), does not fit within the definition of an illegal sentence that may be addressed with a K.S.A. 22-3504(1) motion to correct an illegal sentence. State v. Coleman ………………………. 114

— No Retroactive Application of Alleyne v. United States. The rule of law declared in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), that the Sixth Amendment to the United States Con- stitution requires any fact which increases a sentence beyond the mandatory minimum must be submitted to a jury and proven beyond a reasonable doubt, cannot be applied retroactively to invalidate a sentence that was final when the Alleyne decision was released. State v. Coleman ……………. 114

— Weighing Aggravating and Mitigating Circumstances. A district court cannot improperly weigh aggravating and mitigating circumstances contrary to K.S.A. 2018 Supp. 21-6620(c)(1)(A) and State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015), if no mitigating circumstances exist. State v. Willis ………………………………………………………….. 127

Trial—Self Defense Instruction—Application. Under K.S.A. 2019 Supp. 21-5222, "[a] person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force." State v. Keyes …………………………………………………….……. 103

DAMAGES:

Question of Proper Apportionment of Damage Award—Error for Court of Appeals to Decline Remand to District Court. Upon the facts of this case—where liability has been established, the record clearly shows the injured party has sustained damages, and the only remaining question is the proper apportionment of damages to be awarded—it was error for the Court of Appeals to decline to remand the matter to the district court. Building Erection Svcs. Co. v. Walton Construction Co. …………… 432*

EVIDENCE:

Clear and Convincing Evidence—Definition. Clear and convincing evidence is evidence causing the fact-finder to believe the truth of the facts asserted is highly probable. Woessner v. Labor Max Staffing ………..…. 36

Exclusion of Evidence—Preservation of Issue for Appeal. A party being limited by the exclusion of evidence must sufficiently proffer the substance of that evidence to preserve the issue for appeal. Davis ……... 259*

Relevancy of Evidence—Substantial Connection Required between Facts and Result. Evidence is relevant if it has any tendency in reason to

XVI SUBJECT INDEX 312 KAN. Page

prove any material fact. To establish relevance, there must be some substantial or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Davis ……….………. … 259*

HABEAS CORPUS:

Ineffective Assistance of Counsel Claim—Appellate Review. After a full evidentiary hearing about an ineffective assistance of counsel claim brought under K.S.A. 60-1507, an appellate court reviews a district court's findings of fact and conclusions of law under a mixed standard of review. The appellate court examines the record and determines whether substantial competent evidence supports the district court's factual findings and determines whether those findings support the district court's conclusions of law. The appellate court then reviews the conclusions of law de novo. Khalil-Alsalaami v. State ………………………………………...………. 62

Effect of 60-1507 Motion if Filed Pre-Alleyne v. United States. For a K.S.A. 60-1507 motion filed in a case that was final when Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), was decided, the change in the law effected in Alleyne cannot provide the exceptional circumstances required to permit a successive motion or demonstrate the manifest injustice necessary to permit an untimely motion. State v. Coleman ………………………………………………………. 114

JUDGES:

Asserting Violation of Judicial Canon 2—Proof of Bias or Prejudice by Litigant. A litigant must prove bias or prejudice from the district court when asserting the judge violated Kansas Judicial Canon 2, Rule 2.3 (2020 Kan. S. Ct. R. 449). State v. Bowser ………………………………….. 289*

Judges' Duty to Be Neutral—Error to Advocate for Either Party. Dis- trict court judges must fulfill their duties in a neutral manner. A district court judge errs by becoming an advocate for one party or another during plea negotiations. Merely emphasizing the potential benefits of a plea offer does not, however, constitute advocacy. State v. Bowser ………………….. 289*

KANSAS OFFENDER REGISTRATION ACT:

Court's Failure to Provide Notice—Defendant's Burden to Show Prej- udice. On the facts before us, the defendant has failed to demonstrate prejudice because he neither presented additional evidence nor asked for the opportunity to do so with respect to the district court's exercise of discretion, and because he remained incarcerated—and thus, had no responsibility to register yet—between the time when the district court should have provided him notice and the time it actually did so. State v. Juarez ………………. 22

— Requirement to Show Prejudice on Defendant. A district court's failure to provide timely notice of a defendant's registration obligation under

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K.S.A. 2019 Supp. 22-4904(a)(1)(A) does not constitute a denial of procedural due process where the defendant fails to demonstrate prejudice. State v. Juarez ………….…………………………………………….…. 22

MORTGAGES:

Possession after Default. A holder of a real estate mortgage cannot, even after condition broken, take possession of the mortgaged property, except by post-default consent of all the parties, acquiescence, or court action. Fairfax Portfolio v. Carojoto …………………………………………… 92

Possession of Property upon Default. The mortgage instrument alone is unable to provide authority for a lender to take possession of real estate upon the event of potential future default. Fairfax Portfolio v. Carojoto …………………………………………… 92

MOTOR VEHICLES:

Driving under the Influence—Motion to Suppress Erroneously Granted. Un- der the facts of this case, an appellate court holding that a district court should have suppressed evidence and the conviction based on that evidence was invalid cannot use stipulated facts to find the error was harmless because a defendant could have been found guilty of an alternative charge. The parties agreed the stipulated facts would not apply if the evidence was suppressed. State v. Braun ………….…… 3

Lack of Reasonable Suspicion for Stop—No Error in Setting Aside Sus- pension. The record in this appeal provides substantial competent evidence supporting the district court's conclusion that a law enforcement officer lacked reasonable suspicion to initiate a traffic stop that led to the driver's license being suspended. Because the stop was unlawful, the district court did not err in setting aside the suspension. Jarvis v. Kansas Dept. of Revenue …………………………………….. 156

Refusal of Blood Alcohol Testing—Driver Cannot Show Coercion. A driver alleging an informed consent advisory relating to blood alcohol testing is coercive cannot establish that he or she was unduly coerced into consenting to or taking a test if the driver refused the test. The driver thus cannot show prejudice because of an allegedly defective informed consent advisory. Whigham v. Kansas Dept. of Revenue ………………………….... 147

Traffic Stop—Time Required for Stop—Negligibly Burdensome in This Case. The time involved in calling and waiting for backup officers was "negligibly burdensome" given the circumstances present in this case. State v. Lutz ……. 358*

Traffic Stop Duration—Time Required for Routine Stop—Reasonableness. The tolerable duration of police inquiries in the traffic stop context is not based on any rule of thumb about the minutes required for a 'routine' stop, but is determined by the time required to complete the tasks involved in processing the mission of the traffic stop in question and to attend to related safety concerns. Officers

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may take reasonable and necessary precautions for their safety so long as such measures are not unduly burdensome under the circumstances. State v. Lutz …………………………………………………...……… 358*

PARENT AND CHILD:

Kansas Parentage Act—Burden on Party to Establish Existence of Presumption under Act—Opposing Party Must Rebut Presumption. A woman who seeks to establish parentage by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) bears the initial burden to demonstrate the existence of the presumption. If she succeeds, the burden shifts to the party opposed to establishment of the mother and child relationship to re- but the presumption by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the presumed parent, or under K.S.A. 2019 Supp. 23-2208(c). In re M.F. ……………. 322*

— In re W.L. ………………………………………..……………….. 367*

— Conflicting Parentage Presumptions—Considerations. K.S.A. 2019 Supp. 23-2208(c) provides that, if two conflicting parentage presumptions arise, "the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child" prevails. In re M.F. ………………………………………..……….……. 322*

— In re W.L. …………………………………………………..…….. 367*

— Establishment of Parent-Child Relationship—Evidence. Evidence in support of either party's position in a parentage action brought by a person seeking to establish a parent and child relationship by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) may be direct or circumstantial, testimonial or documentary. In re M.F. ……………………. 322*

— In re W.L. ………………………………………….…………….. 367*

— Presumption of Maternity under Statute—No Requirement of Written or Oral Agreement. A woman seeking to establish parenthood who relies on the presumption of maternity under K.S.A. 2019 Supp. 23- 2208(a)(4) need not show the existence of a written or oral coparenting agreement between her and the birth mother. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child's birth. In addition, in keeping with Troxel v. Gran- ville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the court must ultimately be persuaded that the birth mother, at the time of the child's birth, consented to share her due process right to decision-making about her child's care, custody, and control with the woman who is claiming parentage under the KPA. In re M.F. ………………………...…. 322*

— In re W.L. ……………………………………..………………….. 367*

— Rebuttal of Presumption—Burden Shifts to Original Party Seeking Parentage. Under K.S.A. 2019 Supp. 23-2208(b), if a presumption under

312 KAN. SUBJECT INDEX XIX

PAGE

K.S.A. 2019 Supp. 23-2208(a)(4) is rebutted, the burden of going forward with evidence shifts back to the party seeking establishment of the parent and child relationship. That party must go forward with the evidence, and the ultimate burden can be discharged by a preponderance of the evidence. In re M.F. ………………………………………………………….…. 322*

— In re W.L. ………………………………………..……………….. 367*

— Same-Sex Partner May Establish Parentage. The same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23-2208(a)(4) by notoriously recognizing her maternity. In re M.F. …………..………. 322*

— In re W.L. ………………………………………..……………….. 367*

POLICE AND SHERIFFS:

Invocation of Miranda Rights—Suspect Required to Communicate Decision. Law enforcement's duty to scrupulously honor a suspect's decision to invoke Miranda rights requires the suspect to communicate that decision without ambiguity or equivocation. State v. Davis ………… 259*

Traffic Stop—Reasonable Actions of Officers in This Case. The actions of the officers here, including calling for a drug dog, did not measurably extend the duration of the traffic stop beyond the time necessary to achieve the stop's basic objective of processing the observed traffic violation. State v. Lutz …………………………………………………..…….….. 358

REAL PROPERTY:

Mortgagor Retains Possession. Generally, the mortgagor of real property may retain the possession thereof. Fairfax Portfolio v. Carojoto ……… 92

SEARCH AND SEIZURE:

Consent to Search—Determination from Totality of Circumstances. The existence and voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances. State v. Daino …………. 390*

— Determination of Valid Consent Through Nonverbal Conduct—Consid- erations. An individual may communicate valid consent through nonverbal conduct, provided such conduct clearly expresses an individual's unequivocal, specific, free, and intelligent consent, in the absence of duress or coercion, under the totality of the circumstances, and does not constitute mere acquiescence to a claim of lawful authority. State v. Daino ……………………………………...…. 390*

— Factors for Determination of Voluntary Consent—Nonverbal Con- duct a Relevant Factor. Consent may be found from an individual's words, acts, or conduct, and nonverbal conduct can be a relevant factor in determining the existence of voluntary consent under the totality of the circumstances. State v. Daino ………………………………………………...…. 390*

XX SUBJECT INDEX 312 KAN. Page

— Mere Acquiescence Insufficient to Prove Voluntary Consent. Mere acquiescence to a claim of lawful authority, alone, is insufficient to show voluntary consent. State v. Daino …………………………………….…. 390*

— State's Burden to Establish Valid Consent—Requirements. The State bears the burden to establish the existence, scope, and voluntariness of the consent to search. To demonstrate valid consent, the State must (1) provide clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) demonstrate the absence of duress or coercion, express or implied. State v. Daino ……………………………. 390*

Warrantless Blood Test—Conviction Upheld by Application of Good- Faith Exception to Exclusionary Rule. Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of this case, the good- faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood alcohol content even though the Kansas Supreme Court would later hold that K.S.A. 2013 Supp. 8-1025 was unconstitutional. City of Kingman v. Ary ……………………….. 408*

— State v. Heim ……………………………………..……………….. 420*

Warrantless Search Unreasonable—Exception for Consent to Search. A warrantless search is presumptively unreasonable unless it falls within a recognized exception to the warrant requirement. Consent to search is one such exception. State v. Daino ………………………………………...…. 390*

TRIAL:

Admissibility of Evidence—Preservation of Admissibility Issue for Appellate Review. A pretrial objection concerning evidence admissibility must be contemporaneously renewed during trial or otherwise made subject to a standing objection to preserve the admissibility issue for appellate review. State v. Davis ……………………………………….……….. 259*

Admission of Prior Crimes Evidence—Appellate Review. If a district court properly admitted evidence under one enumerated exception listed in K.S.A. 2019 Supp. 60-455(b), appellate courts need not address the efficacy of another enumerated exception. State v. Meggerson ……………….. 238*

Ambiguous Jury Question—Reasonable Interpretation by Court. When the jury asks an ambiguous jury question and the district court chooses one of two reasonable interpretations, there can be no abuse of discretion. State v. Bowser ……………………………………………………..…….. 289*

Evidence—Relevant Searches if Sufficient Similarity. Internet searches for a handgun, the same type and caliber used days later in a shooting, demonstrates "a sufficient similarity between" the content of the internet searches and shell casings recovered from the scene of the shooting to make evidence of the searches relevant. State v. Willis ……………………… 127

312 KAN. SUBJECT INDEX XXI

PAGE

— Trained Person Qualified to Lay Foundation Testimony. A person trained in the use and maintenance of a jail telephone system and its records is qualified to lay sufficient foundation testimony for that system. State v. Meggerson ……………………………………………...……. 238*

Invited Error Doctrine—Application. The invited error doctrine prevents this court from reviewing instruction errors—even as clearly erroneous under K.S.A. 2019 Supp. 22-3414(3)—when the defendant requests and agrees to the wording of the instruction. State v. Willis …………..…… 127

Jury Instructions—Self-Defense Affirmative Defense—Burden on State to Disprove. In general, a defendant is legally entitled to an instruction on every affirmative defense that is supported by competent evidence. The defense theory of self-defense is an affirmative defense, and once a defendant properly asserts a self- defense affirmative defense, the State must disprove self-defense beyond a reasonable doubt. State v. Keyes ……………………………………………….….. 103

Lay Opinion Testimony—When Permissible. Lay opinion testimony is permissible if it: (1) was rationally based upon the witness' perceptions; (2) helped create "a clearer understanding of the testimony of the witness"; and (3) was "not based on scientific, technical or other specialized knowledge." See K.S.A. 2019 Supp. 60-456(a). State v. Willis ………………..…… 127

Self-Defense Instruction—Evidentiary Requirements. A self-defense instruction is factually appropriate if competent evidence would permit a reasonable fact-finder to conclude that the defendant sincerely and honestly believed it was necessary to kill to defend the defendant or others and that a reasonable person in the defendant's circumstances would have perceived the use of deadly force in self-defense as necessary. State v. Keyes …... 103

WORKERS COMPENSATION:

Statutory Interpretation—Appellate Review. Interpretation of the Kansas Work- ers Compensation Act, K.S.A. 2019 Supp. 44-501 et seq., is a question of law subject to unlimited review. Woessner v. Labor Max Staffing …………………....…….. 36

— Appellate Review. On questions of statutory interpretation, an appellate court owes no deference to interpretations given to the Kansas Workers Compensation Act by the Workers Compensation Board. Woessner v. Labor Max Staffing ………... 36

174 SUPREME COURT OF KANSAS VOL. 312

State v. Dale

No. 117,162

STATE OF KANSAS, Appellee, v. CHRISTOPHER M. DALE, Appellant.

474 P.3d 291

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Prosecution after Post-Conviction Appeal—No Dou- ble Jeopardy Violation. Neither the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution nor K.S.A. 21-3107(2)(a) absolutely prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. If the continued prosecution follows a defendant's post-conviction appeal that sought a new trial and, on remand, a defendant is found guilty of a greater offense after a lesser included offense has been affirmed, a court may, absent application of one of a limited number of exceptions, vacate the sentence for the lesser included offense and impose a sentence for the greater offense.

2. SAME—Aggravated Robbery Convictions Not Multiplicitous In This Case—Two Individual Victims. Under the facts of this case, convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct because robbers, while armed with a BB gun, took property in the possession or control of two individuals by force directed at both.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 1, 2018. Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed October 16, 2020. Judgment of the Court of Ap- peals affirming in part and reversing in part the district court is affirmed. Judg- ment of the district court is affirmed in part and reversed in part.

Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Ste- phen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: After Christopher Dale took the property of three individuals in one incident, the State charged Dale with two counts of aggravated robbery and one count of theft. Each count related to a different victim. Dale argues the State has divided one criminal offense into three crimes. He claims this violates the guarantee that no person will "be subject for the same offence to VOL. 312 SUPREME COURT OF KANSAS 175

State v. Dale be twice put in jeopardy of life or limb" found in the Fifth Amend- ment to the United States Constitution and a Kansas statute, K.S.A. 21-3107(2)(a) (now codified at K.S.A. 2019 Supp. 21- 5109). Only the validity of the two aggravated robbery convictions has been preserved for our consideration. As to those convictions, we reject Dale's arguments and affirm both aggravated robbery convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Dale's convictions arose from events that took place at a skate park where Dale threatened two teenagers with a BB gun while his companion grabbed their property. Dale's involvement followed an earlier incident between the teenagers and his companion. The encounter began when Dale's companion, a minor, approached three teenagers who had been skateboarding. Dale's companion tried to sell the skateboarders an iPod. Two of the skateboarders—who we will refer to as Adam and Kyle—responded by making fun of Dale's companion. Dale's companion became angry and walked away. He phoned his cousin to ask for a ride. Dale, who was the boyfriend of the cousin, answered the phone and, upon learning what happened, grabbed a BB gun and had his girlfriend drive him to a parking lot near the skate park. Dale walked from there to the park and met his companion. Dale and his companion approached the skateboarders. The two skateboarders who had teased Dale's companion were sitting be- side a pile of belongings that included Adam's iPod and cell phone and the cell phones of Kyle and the third skateboarder. The third skateboarder was skateboarding about 20 to 30 feet away while wearing headphones. Dale first pushed Adam's head between his legs and pressed the gun behind his ear. When Kyle tried to intervene, Dale came toward him with the gun and put it to his chest. Kyle looked over and saw Dale's companion grab their property. Dale then hit Kyle in the nose with the gun.

Dale and his companion began to run away, but Adam stepped toward Dale and his companion and asked for the property. Dale 176 SUPREME COURT OF KANSAS VOL. 312

State v. Dale displayed the gun again, which Adam took as a "warning . . . to back off." Based on these events, the State charged Dale with the aggravated robbery of Adam's cell phone and iPod, the aggravated robbery of Kyle's cell phone, and the theft of the third skateboarder's cell phone. The State charged Dale's companion in juvenile court, after which the companion entered into a plea agreement under which he testified against Dale. A jury convicted Dale on all three counts, and the court sentenced Dale on each count. Dale appealed to the Court of Appeals, where he argued two jury instruction errors, prosecutorial misconduct, a violation of his right to be present, and ineffective assistance of counsel. The Court of Appeals rejected all of Dale's claims except one about a jury instruction on aggravated robbery. Because of that error, the Court of Appeals reversed Dale's aggravated robbery convictions and remanded for a new trial on the two aggravated robbery counts. State v. Dale, No. 110,562, 2015 WL 2414264, at *1, 5-6, 14 (Kan. App. 2015) (unpublished opinion) (Dale I), rev. granted in part, remanded to the Court of Appeals for reconsideration in light of State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012) (regarding definition and application of clearly erroneous standard for jury instruction error); State v. Dale, No. 110,562, 2016 WL 687600, at *1 (Kan. App. 2016) (unpublished opinion) (Dale II) (explaining the Dale I panel had applied the proper standard when determining the jury instruction was clearly erroneous and otherwise adopting reasoning of Dale I). On remand, Dale filed a pretrial motion to bar prosecution on the aggravated robbery counts. He argued the Court of Appeals' decision "finalized" his theft conviction. He also contended his theft conviction arose out of the conduct that supported the aggravated robbery charges and the aggravated robbery charges were therefore barred by K.S.A. 21-3107. Alternatively, raising an issue he had not raised in his appeal, he argued the aggravated robbery counts were multiplicitous—that is, that the State charged him with multiple counts for one offense.

The State responded by arguing Dale's aggravated robbery convictions were not multiplicitous because Dale and his companion took property from each victim. And the State argued the theft VOL. 312 SUPREME COURT OF KANSAS 177

State v. Dale of the third skateboarder's property was not a lesser included offense of the aggravated robbery of either Adam or Kyle. The district court denied Dale's motion. As for the multiplicity issue about the aggravated robberies, the district court reasoned: "If there are two individuals that are right in front of the defendant at the time there is force being applied and their property is taken, I think the jury could find that those are aggravated robberies." Turning to the theft charge, the district court reasoned the third individual's property was not taken from his immediate presence, so "[t]hat's a theft." The court rejected the argument that misdemeanor theft encompassed all the acts of the two aggravated robberies and therefore constituted a double jeopardy violation. Dale later waived his right to a jury trial and the parties prepared a "Statement of Stipulated Evidence for Trial." The stipulated evidence included testimony and exhibits from the preliminary hearing and the jury trial held before Dale's first appeal. Through the statement of stipulated evidence, Dale continued to assert his previous objections and motions, including his motion to bar prosecution of the aggravated robbery counts. The district court found Dale guilty on both aggravated robbery counts. Defense counsel moved for reconsideration of Dale's motions and objections made before trial, but the district court rejected all of Dale's arguments and later imposed sentences on each count. Dale again appealed to the Court of Appeals. The Court of Appeals panel held Dale's two aggravated robbery convictions were not multiplicitous. But the panel held that Dale's convictions for theft and aggravated robbery were improperly multiplicitous. The panel thus reversed Dale's theft conviction citing authority establishing that an appellate court reverses the less-severe offense when faced with multiplicitous convictions. The panel rejected Dale's double jeopardy argument that his theft conviction, affirmed on appeal before the remand, barred retrial for his two aggravated robbery counts. The panel reasoned that had Dale raised his multiplicity argument in his initial direct appeal, he would have only been entitled to have his theft conviction reversed, so Dale did not get a reward for failing to raise this issue prior to the 178 SUPREME COURT OF KANSAS VOL. 312

State v. Dale remand. State v. Dale, No. 117,162, 2018 WL 2460263, at *3-4 (Kan. App. 2018) (unpublished opinion) (Dale III). Dale timely petitioned for review. The State did not cross-petition for review of any of the Court of Appeals' holdings. This court granted review and has jurisdiction under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

In State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006), we explained that the Double Jeopardy Clause of the Fifth Amendment "protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Arguments related to any of the three categories present questions of law over which we have unlimited review without deferring to either the district court or the Court of Ap- peals. 281 Kan. at 462. Dale argues his convictions fall within the second and third categories. Both categories apply only if the involved crimes arise from the "same offense." Determining whether the State has charged a defendant with multiple counts of the same offense requires a multilayered analysis. 281 Kan. at 464.

1. Unitary Conduct

At the first layer, a court examines the facts to determine whether the charges arise from "discrete and separate acts or courses of conduct" or unitary conduct arising from "'the same act or transaction'" or a "'single course of conduct.'" Double jeopardy concerns arise only if unitary conduct is at issue. 281 Kan. at 464. The Court of Appeals held Dale engaged in unitary conduct. Dale III, 2018 WL 2460263, at *2. The State did not file a cross- petition challenging this holding. But under similar circumstances we recently considered the merits as a "necessary subissue requiring [the court's] attention in evaluating [the defendant's] claim rather than a preservation misstep by the State." State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019). Cf. State v. Hood, 297 Kan. 388, 392, 300 P.3d 1083 (2013) (noting State did not cross-petition unitary conduct holding but stating, "we would affirm that VOL. 312 SUPREME COURT OF KANSAS 179

State v. Dale ruling"). Consistent with Hirsh, we will examine whether the Dale's conduct was unitary. Courts generally consider four factors when determining whether convictions arise from the same or "unitary" conduct: 1. Did the acts occur at or near the same time? 2. Did the acts occur at the same location? 3. Is there a causal relationship between the acts or was there an intervening event? 4. Did a fresh impulse mo- tivate some of the conduct? Schoonover, 281 Kan. at 497. The State concedes the acts occurred at or near the same time and at the same location. But it argues an intervening event occurred that prompted a fresh impulse when Kyle confronted Dale after Dale had pointed the weapon at Adam. According to the State, "[s]imply stated, Dale applied force individually to each of these young men to facilitate the theft of their individual property." The State cites no cases discussing the meaning of an intervening event or fresh impulse. Two cases not cited by the parties provide guidance, although they deal with different crimes. In State v. Sellers, 292 Kan. 346, 253 P.3d 20 (2011), this court rejected a multiplicity challenge to two convictions for aggravated indecent liberties with a child. There, the defendant touched the victim, left the room to check on a dog for 30 to 90 seconds, and returned to the room to touch the victim a second time. This court acknowledged that the case presented a close call but held the conduct was not unitary because leaving the room to check on the dog broke the chain of causality and gave the defendant a chance to reconsider his felonious actions. 292 Kan. at 359- 60. In State v. Weber, 297 Kan. 805, 304 P.3d 1262 (2013), the defendant argued his convictions for rape and attempted rape were multiplicitous because they stemmed from the same conduct. The defendant attempted penile penetration and, when that failed, digital penetration. The State argued the defendant's inability to accomplish penile penetration constituted an intervening event that created a fresh impulse for the defendant to accomplish digital penetration. This court rejected that argument, explaining: "An intervening event, by its very nature, contemplates an interruption of causation, that is, incidents are considered factually separate 180 SUPREME COURT OF KANSAS VOL. 312

State v. Dale when there is 'an intervening event, as opposed to a causal relationship between the acts.'" 297 Kan. at 810. But in Weber the impulse to rape the victim was never interrupted. See State v. Fos- ter, 290 Kan. 696, 714, 233 P.3d 265 (2010) ("[W]hile other criminal acts occurred between Foster's multiple threats, it is difficult to see how they break the causal relationship between all of Fos- ter's threats or demonstrate fresh impulses to commit multiple crimes of criminal threat."). Likewise, Kyle's actions did not deter Dale from his original intent to deprive the victims of their property. As the Court of Ap- peals reasoned: "[W]e see Dale as having embarked on a singular act of taking the boys' electronics with the help of a gun (and an accomplice). No outside event interrupted Dale, and everything occurred quickly." Dale III, 2018 WL 2460263, at *2. Simply put, there was no fresh impulse, and the State's charges against Dale arise from unitary conduct. Because Dale's conduct was unitary, a double jeopardy violation is factually possible, and our analysis must continue. At the next layer of analysis, the analysis differs depending on whether the issues stem from crimes charged under one statute or more than one. Schoonover, 281 Kan. at 497-98. Dale's successive prosecution claim involves two statutes—theft and aggravated robbery—because his argument is that theft is a lesser included offense of aggravated robbery and he cannot be convicted of both. His multiple punishment argument arises from the same statute because he argues he cannot be punished twice for the same of offense of aggravated robbery. We turn first to his successive prosecution claim based on the charge of theft, which was affirmed on the first appeal and not a part of his second trial, and the charges of aggravated robbery.

2. Retrial and Conviction for Aggravated Robbery Not Barred

Dale's argument that the State violated double jeopardy protections by prosecuting him a second time for aggravated robbery after his theft conviction had been affirmed rests on application of K.S.A. 21-3107(2)(a). That statute provides that "[u]pon prosecution for a crime, the defendant may be convicted of either the VOL. 312 SUPREME COURT OF KANSAS 181

State v. Dale crime charged or a lesser included crime, but not both." He argues that when the Court of Appeals remanded his case to the district court for a retrial on the aggravated robbery charges, he stood convicted of theft, a lesser included offense of the aggravated robbery charges, and could not be convicted later of aggravated robbery for the same offense. The Court of Appeals panel agreed with Dale's argument that the theft is a lesser included offense of aggravated robbery. Dale III, 2018 WL 2460263, at *3 (citing, e.g., State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 [2012]). The panel then applied that conclusion to Dale's case, although it did not discuss the State's argument that a charge of theft related to the third skateboarder's property could not be a lesser offense of the aggravated robbery of Adam and Kyle because the three crimes involved different victims. Rather, the panel held: "Because Dale's actions were unitary and theft is a lesser included offense of robbery, the convictions for theft and aggravated robbery were improperly multiplicitous. . . . When an appellate court finds multiplicitous convictions, we reverse the less-severe offense. . . . We will therefore reverse Dale's theft conviction." 2018 WL 2460263, at *3. The State did not file a cross-petition to argue that the panel should have considered the circumstance that the theft involved a different victim than the aggravated robberies. Today, such a failure would clearly mean the State had failed to preserve the argument for our review. See Supreme Court Rule 8.03(c)(3) (2020 Kan. S. Ct. R. 55) ("The purpose of a cross-petition is to seek review of specific holdings the Court of Appeals decided adversely to the cross-petitioner."). But, as we recently recognized, the State's need to file a cross-petition in order to preserve the requirement was less clear when Dale petitioned for review. See Bal- birnie v. State, 311 Kan. 893, 899, 468 P.3d 334 (2020). In Bal- birnie, we addressed an argument that arguably could have faced the prudential principle of waiver. 311 Kan. at 899. Here, we have a different situation, however. The State not only failed to file a cross-petition, it filed a supplemental brief before this court, but did not argue the theft of the third skateboarder's property was not a lesser included offense of the aggravated robbery of Adam's and Kyle's property. Because of this failure, a 182 SUPREME COURT OF KANSAS VOL. 312

State v. Dale second well-settled prudential rule of preservation kicks in: A party generally abandons or waives an issue by not briefing or arguing it to the court. State v. Reu-El, 306 Kan. 460, 471, 394 P.3d 884 (2017). We thus conclude the State has waived the argument that Dale's theft conviction was not a lesser included offense of his aggravated robbery convictions. The State's waiver of the argument constrains our consideration of the issue because we do not know what arguments the parties would have made. Given that the State waived the point, we do not address the question of whether Dale's theft conviction is a lesser included offense of his two aggravated robbery convictions. Assuming we are dealing with a theft as a lesser included offense of the two counts of robbery, we, like the Court of Appeals panel, consider the remedy that applies under K.S.A. 21-3107(2)(a) when a defendant has been convicted of both a crime and its lesser included offense. And we agree with the panel that typically Kan- sas appellate courts reverse the conviction for the lesser included offense and vacate the corresponding sentence. Dale III, 2018 WL 2460263, at *3-4. See, e.g., Weber, 297 Kan. at 811-12 (holding defendant's convictions for rape and attempted rape were improperly multiplicitous, consequently reversing conviction for lesser included offense of attempted rape and vacating corresponding sentence). The panel imposed this remedy. 2018 WL 2460263, at *4. Dale argues the Court of Appeals erred in doing so because of the procedural posture of his case. He notes that when the Court of Appeals remanded his case to the district court for a retrial on the aggravated robbery charges, he stood convicted of theft, a lesser included offense of the aggravated robbery charges. Given that posture, he contends his retrial on the aggravated robbery charges amounted to a second prosecution for the same offense in violation of his double jeopardy rights and the mandates of K.S.A. 21-3107(2). We disagree. The State started the prosecution of the aggravated robbery and the theft charges at the same time. That single prosecution continues today. K.S.A. 21-3107(2) begins with the words "[u]pon prosecution." The Legislature chose not to use the words "upon conviction" or "upon sentence." The plain language thus directs us to the entire prosecution. And courts apply the plain VOL. 312 SUPREME COURT OF KANSAS 183

State v. Dale language of statutes and avoid adding, deleting, or substituting words. See Kelly v. Legislative Coordinating Council, 311 Kan. 339, 347, 460 P.3d 832 (2020). Likewise, the constitutional protection from a second prosecution does not prevent the continued prosecution of some counts in a prosecution after a criminal defendant has been convicted on other counts. Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984), is instructive. There, a defendant pleaded guilty on two counts of a multi- count indictment. These two counts were lesser-included offenses of crimes charged in other counts the State continued to prosecute. The defendant then argued double jeopardy barred the continued prosecution on the remaining counts. The United States Supreme Court held: "Notwithstanding the trial court's acceptance of respondent's guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges." 467 U.S. at 502. Similarly, "in Kansas, '[a]n accused waives his right to plead double jeopardy when after conviction he applies for and is granted a new trial.'" State v. Morton, 283 Kan. 464, 468, 153 P.3d 532 (2007). There are exceptions for when a prosecution cannot continue after a defendant has sought a new trial. See generally 1 Wharton's Criminal Law § 64, Former Jeopardy—Relief at defendant's instance (15th ed.) (discussing exceptions to second trial at defendant's instance, involving [1] mistrial based on misconduct or bad faith of trial judge or prosecutor, [2] appellate reversal for insufficient evidence, and [3] former prosecution on a multi-count indictment resulting in conviction on some counts and silence about others); see also K.S.A. 21-3108(4)(c) ("A prosecution is not barred under this section . . . . [i]f subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty."). But none of those exceptions apply here, and Dale cannot assert a double jeopardy protection after his convictions were reversed at his in- sistence. To do otherwise would reward Dale for failing to make a timely objection to the charges made against him. Had he asserted 184 SUPREME COURT OF KANSAS VOL. 312

State v. Dale multiplicity before his first trial or during his first appeal, the potential consequence of a remedy on appeal would have been fully explored before retrial. In part because of procedural complica- tions like we see here, "Kansas has a clear policy against piece- meal appeals." State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014). As the State asserts, granting Dale's request to reverse his aggravated robbery convictions encourages delaying a double jeopardy and multiplicity objection. This court has long disfa- vored such behavior. In short, "[t]here simply has been none of the governmental overreaching that double jeopardy is supposed to prevent." John- son, 467 U.S. at 502. We affirm the Court of Appeals holding reversing Dale's theft conviction and vacating his sentence for theft.

3. Dale's Aggravated Robbery Convictions Are Not Multi- plicitous

Dale alternatively argues his two aggravated robbery convictions are multiplicitous. Because we have determined that unitary conduct led to both aggravated robbery counts, we turn to the next consideration of whether both counts charge Dale with the same offense. When the charges arise from the same statute, as they do here, courts determine whether "[b]y statutory definition are there two offenses or only one" by use of the unit of prosecution test. Schoonover, 281 Kan. 453, Syl. ¶ 15. Under that test, "the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution." Schoonover, 281 Kan. at 497-98. "The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed." 281 Kan. at 471-72. This means we must determine the allowable unit of prosecution for aggravated robbery. Under the statutes in effect when Dale committed the acts, aggravated robbery was a robbery, as defined in K.S.A. 21-3427, "committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery." And robbery was defined as "the VOL. 312 SUPREME COURT OF KANSAS 185

State v. Dale taking of property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 21-3426. In State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006), this court applied the unit of prosecution test to the version of the robbery and aggravated robbery statutes at issue. There, Ngan Pham and two other men forcibly entered a residence and tied up six family members in the living room, including the family's two daughters and mother. While one man held the family at gunpoint, another took two pieces of jewelry, one belonging to each of two daughters, from a purse in the mother's bedroom drawer. The State charged Pham with six counts of aggravated robbery. The State conceded that all six convictions could not survive, but it alleged two should be affirmed because two family members lost jewelry. The Pham court phrased the precise issue before it as whether "the legislature intended for all six family members to be claimed as victims for the robbery of jewelry (a) belonging to only two and (b) taken from the bedroom of a third who was holding the jewelry for safekeeping." 281 Kan. at 1248. As this indicates, Pham was complicated by the fact it was hard to determine from whose presence the robbers took the jewelry because the robbers restrained and held at gunpoint both the owners of the property and the person with possession and control. See K.S.A. 21-3426 (defining robbery as "the taking of property from the person or presence of another by force or by threat of bodily harm to any person"). Pham held the legislative intent in this situation was unclear. 281 Kan. at 1248. So "[i]n the absence of clear legislative intent, the rule of lenity presumes a single physical action harming multiple victims is only one offense." 281 Kan. at 1248. Pham reasoned its approach aligned with four earlier Kansas cases interpreting the robbery statutes, which Pham synthesized to explain:

"[U]nder proper circumstances, one transaction can support more than one count of aggravated robbery. See, e.g., State v. Jackson, 218 Kan. 491, 543 P.2d 901 [1975]. Here, however, as in State v. McQueen, 224 Kan. 420, 582 P.2d 251 [1978], only one person was relieved of items of property belonging to different persons. Hence, there was only one victim." 281 Kan. at 1251.

Because this conclusion turns on distinctions in the synthesized cases, more discussion of them helps explain our analysis. 186 SUPREME COURT OF KANSAS VOL. 312

State v. Dale

In Jackson, three men entered a pharmacy and at least two were armed with handguns. The men ordered the pharmacy occupants to the floor and robbed three people: (1) the pharmacist of money, drugs, and deposit slips belonging to the pharmacy; (2) a customer of money; and (3) an employee of money and a pocket- knife. On appeal, this court rejected Jackson's argument that he could only be convicted of one count of aggravated robbery: "While the incident here was one overall transaction, three separate robberies were committed with property of three different persons being taken by threat of bodily harm against three separate individuals." 218 Kan. at 492. Pham also discussed State v. Branch & Bussey, 223 Kan. 381, 382, 384, 573 P.2d 1041 (1978), where this court rejected the argument that defendants' actions of seizing marijuana and robbing three men of their billfolds constituted one robbery. This court reasoned: "Since each robbery was committed upon a different person it was necessary to prove different facts for each of the charges; thus, the charges were separate and not duplicitous." 223 Kan. at 384. This focus on the facts used to prove an offense has since been rejected as not consistent with the unit of prosecution test. See Schoonover, 281 Kan. at 467 (The same offense "'test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged.'"). But the Branch & Bussey court relied on a century-old Colorado Su- preme Court case that used the correct test, In re Allison, 13 Colo. 525, 532, 22 P. 820 (1889). There, the Colorado court rejected the defendant's argument that three of his indictments for highway robbery were for the same offense. The court held each count could stand because the defendant was not tried for robbing a stage; instead, each charge alleged the defendant robbed a different passenger on the stage. The court reasoned that each robbery constituted a distinct offense, even though occurring in the same place in rapid succes- sion. The court also considered the result if the acts were considered unitary conduct: "[E]ven if regarded as a single act, they affected separate objects. And, 'where one unlawful act operates on several objects, there may be several offenses committed, and so several prosecutions for the same criminal transaction.'" 13 Colo. VOL. 312 SUPREME COURT OF KANSAS 187

State v. Dale at 532. Pham characterized Branch & Bussey's discussion of Alli- son as "address[ing] what effectively was the unit of prosecution analysis." 281 Kan. at 1249. Next, the Pham court discussed State v. McQueen, 224 Kan. 420, 582 P.2d 251 (1978). Pham described McQueen as a case "slightly off the path prepared by . . . Jackson and Branch & Bus- sey." 281 Kan. at 1250. The State charged Donald McQueen in one count with robbery because the robbers took money in the presence of five employees of the Grove IGA, including Larry Wolf. In another count, the State charged McQueen with robbery for taking a revolver belonging to Wolf. McQueen held the latter conviction and sentence could not stand:

"The state attempts to justify the separate charges by contending there was a lapse of time between the two incidents. When the robbery was in progress Wolf was confronted in the office by one of the robbers who demanded and received the gun. Wolf was ordered to leave the office and then the money was taken. The state further contends count eleven charges aggravated robbery of the money belonging to Grove IGA, while count twelve separately charges aggravated robbery of a gun belonging to Wolf. These arguments are not persuasive. There was one store robbery. Both the money and the gun were kept on the store premises in connection with running the business. This court has held ownership of the property taken is not an element of robbery under K.S.A. 21-3426. [Cita- tion omitted.] Multiple offenses cannot be carved out of a single robbery because of separate ownership of the property taken. "The state may not split a single offense into separate parts. When there is one wrongful act it does not furnish a basis for more than one criminal prosecution." (Emphasis added.) 224 Kan. at 430-31.

While this result may at first glance seem inconsistent with Jackson and Branch & Bussey, in State v. Shoemake, 228 Kan. 572, 618 P.2d 1201 (1980), this court explained how McQueen followed the path prepared by Jackson and Branch & Bussey. In Shoemake, the allegations involved the defendant's accomplice robbing a supermarket. The accomplice approached the manager with a weapon and demanded money; the manager handed over money from a register. Then, at a different register, the accomplice took money by force from a cashier and a third employee placed the money in a sack. On appeal, Joe Shoemake argued only one robbery took place and separate charges of robbery of the man- 188 SUPREME COURT OF KANSAS VOL. 312

State v. Dale ager, the cashier, and the third employee allowed multiple convictions for a single offense. This court agreed that the charge relating to the third employee could not stand because the robbers took no property forcibly from him. 228 Kan. at 577. But this court affirmed the other counts:

"Where, in the course of the robbery of a business establishment, several employees are held at gunpoint and compelled by force to deliver to the robber property in the possession or custody of the employee, a separate and distinct aggravated robbery occurs with the taking of property from each victim. In the present case, property was taken from the manager . . . and from the cashier . . . both of whom were custodians of store property. The forcible taking of such property from these employees constituted separate and distinct aggravated robberies which could be charged in separate counts." 228 Kan. at 577.

Shoemake also explained this court's earlier decision in McQueen:

"In . . . McQueen, . . . it was held that multiple offenses could not be charged where only one person was robbed of items of property belonging to different persons. In that case, one conviction for aggravated robbery was set aside where the only victim was compelled at gunpoint to deliver property belonging to a supermarket and also a gun belonging to himself." (Emphasis added.) Shoemake, 228 Kan. at 577.

As quoted above, after discussing these earlier cases, the Pham court noted: "[A] synthesis of these four cases demonstrates that under proper circumstances, one transaction can support more than one count of aggravated robbery." Pham, 281 Kan. at 1251. But, where only one person is "relieved of items of property belonging to different persons," only one count may stand. 281 Kan. at 1251. In Pham, arguably only the mother had possession—that is, she is the one from whose presence the robbers took the property of her two daughters. Likewise, in McQueen, the robbers took money belonging to the Grove IGA and a gun belonging to Wolf from the possession or control of Wolf. In those cases, one robbery occurred. The Pham court reached this conclusion based in part on the discussion of the meaning of "presence" in State v. Evans, 251 Kan. 132, 834 P.2d 335 (1992). See Pham, 281 Kan. at 1248. Ev- ans, like Pham, dealt with a robbery of property located in a bed- VOL. 312 SUPREME COURT OF KANSAS 189

State v. Dale room while the person who possessed the property was in the living room. In both cases, this court held the taking was from the presence of the person with possession or control of the property. The Evans court, 251 Kan. at 137, quoted from State v. Glymph, 222 Kan. 73, 74, 563 P.2d 422 (1977), which discussed in greater depth the meaning of "presence" as used in the context of robbery crimes. In that discussion, the Glymph court made a point that supports one of Dale's argument: He argues the Court of Appeals panel erred because it improperly focused on ownership of the property. Glymph supports the point-of-law aspect of this argument because it holds that ownership is not an element in defining the unit of prosecution for robbery. 222 Kan. at 74. Yet it is not clear to us that the panel focused on ownership. While the panel mentioned ownership, it also discussed taking property by force from the presence of an individual. See Dale III, 2018 WL 2460263, at * 3 ("Dale used a gun to take property owned by Adam and Kyle from the presence of each of them. Dale pushed Adam's head between his legs and put a gun behind his ear. Dale separately put his gun to Kyle's chest. The State could charge two counts of aggravated robbery on these facts."). This analysis dove- tails with the remainder of the Glymph court's discussion about taking property from the presence of someone, and that discussion undercuts Dale's arguments. The Glymph court explained that robbers take property from the presence of the victim if the "victim's possession and control of property is severed by force or threat of bodily harm" even if, "prior to the time the property is taken, the victim is forcibly removed from the premises and the taking is not within his immediate view." Glymph, 222 Kan. 73, Syl. ¶ 2. The court expanded on this element—severance by force—that is key to defining the unit of prosecution: "The general rule is that 'presence,' as that word is used in defining robbery, means a possession or control so immediate that violence or intimidation is essential to sunder it." 222 Kan. at 74. Stating the point again, the court added: "A thing is in the presence of a person with respect to robbery, which is so within his control that he could, if not overcome by violence or prevented by fear, retain his possession of it." 222 Kan. at 74-75. 190 SUPREME COURT OF KANSAS VOL. 312

State v. Dale

In Pham, ambiguity existed as to whether the robbers severed possession of the property from the mother, the owner-daughters, or all. Because of that ambiguity, the Pham court determined only one count of robbery stood. But in the strand of cases discussed by Pham where the court could determine multiple individuals had possession or control of property that was taken by force, the court held the defendants could be convicted of multiple counts of robbery. Robbers used force or the threat of bodily harm to separately take property from a pharmacist and two customers in Jackson, billfolds from three men in Branch & Bussey, property from different stage passengers in Allison, and property from the store manager and a cashier in Shoemake. The multiple instances of severance of possession and control by force or by threat of bodily harm supported multiple convictions. The Court of Appeals holding thus finds support in Jackson, Branch & Bussey, Allison, and Shoemake. Dale disagrees, arguing the facts here more closely align with Pham and McQueen. Granted, at least some of those cases in which multiple convictions were affirmed involved more clearly delineated takings of property from each victim because the property was taken from the person, rather than from their presence. And because the property grabbed by Dale's companion was on the ground near Adam and Kyle rather than on them, Dale and his companion took the property from their presence. Even so, this case is more like Jackson, Branch & Bussey, and Shoemake than Pham and McQueen. Here, as compared to Pham, nothing suggests that either Adam or Kyle had entrusted the other with possession of the property. Instead, both had comparable access to the property, and each had a claim to the control and possession of at least his own cell phone and, for Adam, his iPod. In this way, while ownership is not determinative, it can weigh on the question of who possessed and controlled the property. And Adam and Kyle both had some "possession or control so immediate that violence or intimidation [was] essential to sunder" or sever it. Glymph, 222 Kan. at 74. We agree with the panel and the district court that the State could charge Dale with two counts of aggravated robbery under the unit of prosecution test.

VOL. 312 SUPREME COURT OF KANSAS 191

State v. Dale

CONCLUSION

The Court of Appeals determined that theft was a lesser included offense of aggravated robbery; that holding has not been preserved for our review. We have been asked if, given that holding, Dale could be convicted of the greater offense while the lesser offense is reversed. On that question, we hold the Court of Ap- peals did not err in holding that convictions for aggravated robbery would not result in a subsequent prosecution in violation of either a constitutional or statutory right to be free from double jeopardy. We also determine that neither the Court of Appeals nor the district court erred in holding that Dale was not twice put in jeopardy when convicted of two counts of aggravated robbery given the facts establishing that Dale and his companion severed both Adam's and Kyle's possession and control of the property through bodily harm or the threat of bodily harm resulting from the use of a deadly weapon.

Judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed. Judgment of the district court is affirmed in part and reversed in part.

JEFFREY GETTLER, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Gettler was appointed to hear case No. 117,162 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss. 192 SUPREME COURT OF KANSAS VOL. 312

State v. Herring

No. 118,648

STATE OF KANSAS, Appellee, v. CHRISTOPHER LEE HERRING, Appellant.

474 P.3d 285

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Motion to Withdraw Plea for Good Cause—Legal Standard. It is an abuse of discretion for a district court to apply the wrong legal standard when considering a plea withdrawal for good cause under K.S.A. 2019 Supp. 22- 3210(d)(1).

2. SAME—Motion to Withdraw Plea for Good Cause—Application of Wrong Legal Standard—Reversal and Remand. When an appellate court determines a district court abused its discretion by applying the wrong legal standard to its consideration of a plea withdrawal for good cause under K.S.A. 2019 Supp. 22-3210(d)(1), the correct disposition is to reverse the decision and remand the case to the district court with directions to ensure the correct legal standard is applied.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 29, 2019. Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed October 16, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: When a district court applies the wrong legal standard to its consideration of a plea withdrawal for good cause under K.S.A. 2019 Supp. 22-3210(d)(1), it is an abuse of discretion. State v. Aguilar, 290 Kan. 506, Syl. ¶ 2, 231 P.3d 563 (2010). In this case, Christopher Herring challenges a Court of Appeals decision that used a harmless error analysis to save a district court's denial of his motion to withdraw his plea—even though the panel agreed the wrong legal standard was applied. State v. Herring, No. 118,648, 2019 WL 1413030, at *3-4 (Kan. App. 2019) (unpublished opinion). Herring argues an appellate court cannot engage in harmless error analysis in this circumstance. We agree. VOL. 312 SUPREME COURT OF KANSAS 193

State v. Herring

For that reason, we reverse the panel's decision and remand his case to the district court with directions to use the proper legal standard, i.e., K.S.A. 2019 Supp. 22-3210(d)(1) ("A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. [Emphasis added.]").

FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, the State charged Herring with aggravated robbery at a Family Dollar store. The district court appointed Brandon Hottman to represent him. Before trial, Herring filed three pro se motions to discharge Hottman. The court denied each motion after hearings on the merits. His arguments advanced in those motions underlie this appeal. At the first hearing, Herring claimed Hottman had not allowed him to review audio and video recordings from surveillance cameras at the store. Hottman admitted this but explained he had reviewed the recordings and discussed them with Herring. The court instructed Hottman to make them available to Herring. The court then denied the motion, reasoning his claim was legally insufficient and premature. At the second hearing, Herring argued Hottman refused to file a motion to dismiss "for lack of evidence" and had requested a continuance over Herring's objection. Hottman said he asked for the delay because he had not yet received the preliminary hearing transcript and there was "an open investigation" concerning Her- ring's possible alibi defense. The district court denied the motion. At the third hearing, Herring repeated earlier arguments, saying he had "bad communication" with Hottman over his refusal to file the motion to dismiss. Hottman conceded they had disagreed on that because Hottman believed the motion was premature. The court again refused to appoint new counsel. Herring's case went to trial in May 2017, but he pleaded no contest to amended charges of robbery and aggravated assault just after jury selection. At the plea hearing, he attributed his reason for taking the plea to additional evidence the State had concerning a phone call Herring made from jail. The court accepted Herring's plea and found him guilty of the amended charges. 194 SUPREME COURT OF KANSAS VOL. 312

State v. Herring

Herring filed a pro se motion before sentencing to withdraw his plea. Among other reasons, he asserted ineffective counsel. The court appointed him a new attorney, who expanded on the pro se claims. Both Herring and Hottman testified at an evidentiary hearing. Herring made three claims about Hottman's competence: (1) insufficient visitations, (2) failure to investigate an alibi defense, and (3) mischaracterization of the potential adverse impact from the jail phone call. As to the first claim, Herring said Hottman only visited him "[m]aybe twice." Hottman denied this, insisting they met at least seven times, with each visit lasting 10 to 30 minutes. As for the second claim, Herring said he gave Hottman information about possible alibi witnesses, including his sister. He did not know the others' names but provided their possible addresses. Herring claimed as his alibi that he was eating chicken with his sister "at one point in time around that time." Hottman testified he tried to verify this but decided it was not viable because he could not "anchor it in time." He said the sister first told him she and Herring regularly ate chicken and "indicated she had chicken with him on a Tuesday." But he said when she learned what day the crimes occurred, she "changed it to a Thursday." Hottman said he made the "strategic decision" not to pursue this. As to the other witnesses, Hottman said he believed his investigator attempted to contact them but did not explain the result of that effort. Finally, Herring complained Hottman mischaracterized the jail phone call as a confession and improperly persuaded him "that [was] a reason why [he] should take a deal." Hottman described the call as Herring telling his sister that "he needed money and then she [made] a comment that the Family Dollar won't feed you or something along those lines." Hottman thought it sounded "like [Herring] was explaining his actions." He also said he had received the recording about a week before trial, but neither he nor his co-counsel listened to it until the morning of trial just before voir dire. They discussed it with Herring after completing jury selection. Hottman said Herring's "first comment [about the call] was that [it] sounds like a confession and [Herring] put his head VOL. 312 SUPREME COURT OF KANSAS 195

State v. Herring down. He maintained that it was taken out of context but admittedly said that it didn't sound good." The appellate record does not include a transcript or audio recording of that call. In ruling on the plea withdrawal, the district court considered Herring's claims in light of K.S.A. 2019 Supp. 22-3210(d)(1) and the three nonexclusive factors set out in State v. Edgar, 281 Kan. 30, Syl. ¶ 2, 127 P.3d 986 (2006). The court stated, "The Edgar factors are, one, whether the defendant was represented by competent counsel, [two] whether the defendant was misled, coerced, mistreated or unfairly taken advantage of and, three, whether the plea was fairly and understandingly made." As to the first Edgar issue, which is the one relevant for this appeal, the court stated:

"[To address the first factor,] I considered the two-prong test in Strickland v. Washington, 466 U.S. 668, [104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Those factors are two: First, counsel committed serious errors that undermine the Sixth Amendment's guarantee to effective assistance of counsel and, two, counsel's deficient performance prejudiced the defendant. "More specifically, [under] Moncla v. State, 285 Kan. 826, [176 P.3d 954 (2008)]. . . , a movant must establish, one, counsel's representation fell below the objective standard of reasonableness considering all circumstances and then, two, but for the counsel's deficient performance there is a reasonable probability that the outcome of the proceeding would have been more favorable to the defendant. "In considering the first element, defense counsel enjoys a strong presumption that his or her conduct falls within the wide range of reasonable professional conduct. Further, courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on matters of reasonable strategy and make every effort to eliminate the distorting effects of hindsight. . . . . "The issue in this case is has the defendant . . . shown good cause to permit a withdrawal of his plea. My ruling is as following: I deny Mr. Herring's motion. I find Mr. Hottman, along with Miss McFerren, provided competent and effective representation of Mr. Herring. "The question of whether to proceed with an alibi defense is a strategic, tactical, technical, and professional decision that rests with Mr. Hottman. Fur- thermore, Mr. Hottman thoroughly and capably vetted the facts supporting the proposed defense and in real time as well as hindsight made a strategic decision not to pursue the defense. . . . . "Based upon the written motion and the defendant's testimony, I believe Mr. Herring's position can fairly be broken down into three claims. First, he was not represented by competent counsel. That's the first Edgar factor. I'm including the 196 SUPREME COURT OF KANSAS VOL. 312

State v. Herring alibi defense issue under this claim because whether or not to pursue an alibi defense is the attorney's decision. . . . Therefore, the issue should be considered in the context of ineffective representation of counsel. Was it objectively unreasonable for Mr. Hottman not to pursue the alibi defense? . . . . " . . . Defendant claims Mr. Hottman's representation was incompetent, in- complete, and insufficient. He claims Mr. Hottman rarely visited him in jail. That is contrary to the credible facts. Mr. Hottman testified from a detailed file that he saw defendant seven times, basically once per month. Mr. Hottman provided competent and reasonable representation. "Besides seeing defendant in custody, which we all know is not always the best way to spend time investigating and preparing a defense, Mr. Hottman provided defendant with discovery, showed him the video early on, in fact, on Feb- ruary 1st, 2017. He engaged an investigator and when close to trial spent the requisite time preparing pretrial motions, organizing a trial notebook or binder, in his words, and generally preparing for trial. He did all of this while having to endure the defendant's baseless requests to terminate his representation. "It is clear Mr. Herring wanted his case to be defended a certain way. He wanted to act as a lawyer. He's critical of Mr. Hottman for not filing the defendant's motions. But the law categorized as hybrid representation simply does not allow Mr. Herring to have a lawyer and be a lawyer. "Now, regarding the alibi defense, first, whether to pursue the defense is Mr. Hottman's decision, not Mr. Herring's decision. So the issue is whether Mr. Hottman's decision not to pursue the defense meets the objective standard of reasonableness. Based upon the facts, it most certainly does. "Mr. Hottman took his client's alibi evidence at face value and pursued it. He took down the names, principally the defendant's sister, and followed up. He spoke to the sister more than once and had his investigator follow up with the sister, as well as others, but the sister could not provide an adequate recollection or evidence sufficient to anchor the defense. Mr. Hottman recognized this and decided the evidence did not meet the legal requirement to go forward, not to mention that to do so would hurt the credibility of the defendant's other theories of defense, a most reasonable legal decision. "In summary, based upon the totality of the circumstances, I find that Mr. Herring has failed to meet his burden regarding the first Strickland factor and I find that Mr. Hottman's representation clearly meets the objective standard of reasonableness. He did a good job for his client. The defendant's fragmentary perspective of Mr. Hottman's representation, including his argument that Mr. Hottman should have requested a continuance on the second day of trial, is in fact distorted and unduly magnified through the lens of hindsight. I do not consider the second Strickland factor."

After denying the motion, the court sentenced Herring to 43 months' imprisonment for robbery and 13 months for aggravated assault, both to run concurrent. Herring appealed, challenging the VOL. 312 SUPREME COURT OF KANSAS 197

State v. Herring district court's ruling on the first Edgar factor as an abuse of discretion based on an error of law. The panel agreed the district court erred by using the wrong legal standard—the Strickland test—instead of the correct, less stringent "'lackluster advocacy'" standard specified under Aguilar, 290 Kan. at 513, ("Merely lackluster advocacy . . . may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea."). Herring, 2019 WL 1413030, at *3-4. But it also held the error was harmless, so it affirmed. The panel's holding states:

"Regardless, we find this error to be harmless in light of our review of the entire record and the specific findings made by the district court after hearing the evidence presented at the motion hearing. See Edgar, 281 Kan. at 37-38 (citing State v. Trotter, 218 Kan. 266, 269, 543 P.2d 1023 (1975) ['While we do not approve of any failure to comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom requires reversal.']). . . . [T]he district court not only found that Herring's attorneys met the objective standard of reasonableness but also expressly found that they were 'competent,' 'effective,' 'capabl[e],' and had done a 'good job' in representing Her- ring. Each of these findings reveal that the district court concluded that counsel's performance exceeded the 'lackluster advocacy' standard set forth in Aguilar. "On the one hand, the dictionary defines 'lackluster' to mean 'lacking energy or vitality; boring, unimaginative, etc.' Webster's New World College Dictionary 812 (5th ed. 2014). On the other hand, the dictionary defines 'effective' to mean 'having an effect; producing a result' or 'producing a definite or desired result.' Webster's New World College Dictionary 464 (5th ed. 2014). Accordingly, we find that any error committed by the district court was harmless because the record conclusively shows that the representation of Herring provided by Hottman and his cocounsel was far from lackluster." Herring, 2019 WL 1413030, at *4.

Herring petitioned this court for review, challenging the panel's application of harmless error. We note the threshold ruling on the district court's use of the wrong legal standard is settled because the State did not cross-petition for review about that. See State v. McBride, 307 Kan. 60, 62, 405 P.3d 1196 (2017) (when appellee does not cross-petition for review of a Court of Appeals holding that error occurred, the Supreme Court will not consider whether that holding was erroneous when reviewing the appeal). Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals decision); K.S.A. 60-2101(b) (providing Su- preme Court jurisdiction over cases subject to review under K.S.A. 20-3018). 198 SUPREME COURT OF KANSAS VOL. 312

State v. Herring

STANDARD OF REVIEW

The issue is whether the district court's improper use of the Strick- land standard requires remand or is amenable to a harmless error analysis. Our standard of review is de novo. State v. Ward, 292 Kan. 541, 577, 256 P.3d 801 (2011); see also State v. Belone, 295 Kan. 499, 503, 285 P.3d 378 (2012) (when determining a trial error is harmless, "we employ a de novo review of the entire record").

DISCUSSION

K.S.A. 2019 Supp. 22-3210(d) allows for withdrawal of a guilty or nolo contendere plea in the discretion of the court. See K.S.A. 2019 Supp. 22-3210(d)(1) (presentence; "within the discretion of the court"); State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014) (postsentence; district court's ruling is reviewed for abuse of discretion). But the statutory standards for granting withdrawal differ depending on the timing. If the request is made before sentencing, the plea may be withdrawn for "good cause shown." If requested after sentencing, the plea may be withdrawn only "[t]o correct manifest injustice." K.S.A. 2019 Supp. 22- 3210(d)(1), (2). Under Aguilar, when a defendant moves to withdraw a plea after sentencing, a district court must use the ineffective assistance standard under Strickland to consider the first Edgar factor. But when the same motion is made before sentencing, the court applies the lower "lackluster advocacy" standard. As the Aguilar court explained:

"It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden. The Edgar factors do not transform the lower good cause standard of the statute's plain language into a constitutional gauntlet. Merely lackluster advocacy . . . may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea." (Emphasis added.) 290 Kan. at 513.

In deciding the error was harmless, the panel noted the district court "expressly found that [Hottman and his co-counsel] were 'competent,' 'effective,' 'capabl[e],' and had done a 'good job' in representing Herring. Each of these findings reveal that the district VOL. 312 SUPREME COURT OF KANSAS 199

State v. Herring court concluded that counsel's performance exceeded the 'lackluster advocacy' standard set forth in Aguilar." Herring, 2019 WL 1413030, at *4. In so holding, the panel apparently relied on Ed- gar, 281 Kan. at 37-38 (citing Trotter, 218 Kan. at 269), to conclude the district court's error could be deemed harmless. The panel's analysis is wrong. To begin with, neither Edgar nor Trotter are on point. In Trotter, the defendant claimed his guilty pleas were involuntary because the district court did not strictly comply with K.S.A. 2019 Supp. 22-3210(a): when accepting the pleas, the court failed to sufficiently advise Trotter about the nature of the charges, and the possible sentence and consequences of such pleas, nor did it personally question him about the voluntariness of his pleas as the statute required. Trotter, 218 Kan. at 268-69. Based on this, the Trotter court held,

"While we do not approve of any failure to comply strictly with the explicitly stated requirements of K.S.A. 22-3210, it does not follow that every deviation therefrom requires reversal. If upon review of the entire record it can be determined that the pleas of guilty were knowingly and voluntarily made, the error resulting from failure to comply strictly with K.S.A. 22-3210 is harmless." 218 Kan. at 269.

Trotter challenged the validity of his guilty pleas for the first time on appeal. 218 Kan. at 266-68 (life sentence case; directly appealed to Supreme Court). And that is why the Trotter court looked at the entire record and determined whether the error was harmless. Those circumstances are not presented in Herring's appeal. In Edgar, the court quoted Trotter's holding to explain that while "[a] failure to strictly comply with the [statutory requirements . . . ] may be harmless error if a review of the entire record shows the guilty plea was knowingly and voluntarily made," it "may be good cause for granting a motion to withdraw if the noncompliance results in the defendant not understanding the nature of the charge or the consequences of entering the plea." Edgar, 281 Kan. at 37-38. The simple point is that neither case supports the Herring panel's notion that the district court's abuse of discretion from applying the incorrect legal standard to determining "good cause" could be saved by harmless error review. Indeed, our caselaw holds otherwise. In similar cases when "the district court's decision to deny the defendant's motion 200 SUPREME COURT OF KANSAS VOL. 312

State v. Herring to withdraw plea may have been guided by an erroneous legal conclusion," the court has consistently reversed and remanded "to ensure that the district court applies the appropriate legal standard to determine whether defendant made the good cause showing." State v. Garcia, 295 Kan. 53, Syl. ¶ 5, 283 P.3d 165 (2012); see also Aguilar, 290 Kan. at 515 ("The district judge's failure to apply the appropriate standards in the plea withdrawal hearing was an abuse of discretion requiring reversal and remand . . . ."). In Garcia, in denying a plea withdrawal, the district court erroneously cited State v. Ford, 23 Kan. App. 2d 248, 930 P.2d 1089 (1996) (requiring an allegation of innocence to justify a motion to withdraw a plea prior to sentencing), which was overruled by State v. Vasquez, 272 Kan. 692, 696, 36 P.3d 246 (2001) ("It is apparent that this court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor is there such a requirement in the statute, which ba- ses withdrawal on good cause shown and on the discretion of the trial court."). Garcia, 295 Kan. at 58-59. And despite the district court's discussion of the Edgar factors, the Garcia court was not "reassured enough" to "discount or disregard the possibly inappropriate emphasis on Ford and the absence of an allegation of innocence." 295 Kan. at 63. In other words, because the district court's ruling "may have been guided by an erroneous legal conclusion," the "uncertainty" about what it would have done absent the error was enough to reverse its denial and remand for another hearing to apply the appropriate legal framework. 295 Kan. at 63-64. Herring's case is even more problematic. Here, all agree the district court incorrectly used the more stringent, constitutional standard when considering the first Edgar factor. It explicitly stated "defense counsel enjoys a strong presumption that his or her conduct falls within the wide range of reasonable professional conduct. Further, courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on matters of reasonable strategy and make every effort to eliminate the distorting effects of hindsight." (Emphases added.) And it expressly relied on Strickland and found Hottman and co-counsel were "competent," "effective," "capabl[e]," and "[Hottman] did a good job for his client." VOL. 312 SUPREME COURT OF KANSAS 201

State v. Herring

Those findings are plainly from the ineffective assistance standard—not the applicable lackluster advocacy standard. Even worse, no caselaw supplies an exact meaning of lackluster advocacy, so it is impossible for a reviewing court—like the Herring panel—to know how its view might square with the district court's on the same set of facts. The lower court has to rule first to know that. See State v. Schow, 287 Kan. 529, 546, 197 P.3d 825 (2008) (remand ordered to apply the correct law to determine whether the defendant "established good cause and then to exercise its discretion to rule on the motion"). This unknown is easily illustrated. As noted by the panel, the dictionary definition of "'lackluster'" means "'lacking energy or vitality; boring, unimaginative, etc.'" Herring, 2019 WL 1413030, at *4. Alt- hough we emphasize that we do not express any opinion on the merits of Herring's plea withdrawal motion, this record at least shows circumstances that might be fairly characterized as "lackluster" advocacy, such as Hottman not letting Herring review the surveillance recordings until the court ordered him to do so; or not listening to the jail call recording until the first morning of trial despite having received it the week before. A reviewing court may think it understands how a district court should view these circumstances, but it cannot know for sure until the lower court does the analysis. The district court must decide first whether these facts, taken in consideration with the rest of Herring's case, amount to good cause under the lackluster advocacy standard. Just as importantly, remand is consistent with precedent, i.e., Gar- cia, Aguilar, Schow, and other Court of Appeals decisions, e.g., State v. Locke, 34 Kan. App. 2d 833, 836, 125 P.3d 584 (2006) ("It is not this court's function to review the record to determine if Locke established 'good cause' to withdraw his plea. This judgment must be first exer- cised by the district court."); State v. Black, No. 118,570, 2018 WL 6713965, at *4 (Kan. App. 2018) (unpublished opinion) (rejecting the State's argument that the district court's error was harmless; remanding the case for the district court to apply the correct legal standard for assessing the competency of counsel in a presentence motion to withdraw plea); State v. Fritts, No. 96,975, 2007 WL 2915605, at *2 (Kan. App. 2007) (unpublished opinion) ("Remand for a new hearing is necessary since this court has no evidence before it now that would allow an informed decision regarding the merits of the motion. At that hearing, the trial court should apply the appropriate 'for good cause shown' 202 SUPREME COURT OF KANSAS VOL. 312

State v. Herring standard in determining whether Fritts should be allowed to withdraw his plea."); State v. Krusich, No. 96,766, 2007 WL 2695833, at *2 (Kan. App. 2007) (unpublished opinion) ("[W]e must remand the case for a rehearing on Krusich's motion to withdraw plea because the discretionary call as to whether good cause has been shown must first be made by the district court."); State v. Darby, No. 95,185, 2007 WL 219970, at *5 (Kan. App. 2007) (unpublished opinion) ("Because Darby was subjected to an inappropriate standard, we are required pursuant to Locke to remand this case to the district court for reconsideration of Darby's motion under the proper legal standard.").

We reverse the panel's decision and remand the case to the district court with directions to reassess the first Edgar factor under the lackluster advocacy standard and then exercise its statutory discretion under K.S.A. 2019 Supp. 22-3210(d)(1).

Reversed and remanded with directions.

BEIER, J., not participating. 1 MICHAEL E. WARD, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 118,648 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Carol A. Beier.

VOL. 312 SUPREME COURT OF KANSAS 203

In re Murphy

No. 122,036

In the Matter of MARK D. MURPHY, Respondent.

473 P.3d 886

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Two-Year Suspen- sion.

Original proceeding in discipline. Opinion filed October 16, 2020. Two- year suspension. Respondent may apply for probation after one year.

Deborah L. Hughes, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the brief for petitioner.

Daniel F. Church, of Morrow Willnauer Church, LLC, of Kansas City, Mis- souri, argued the cause and was on the briefs for respondent. Mark D. Murphy, respondent, argued the cause pro se.

PER CURIAM: This is a contested attorney discipline proceeding against Mark D. Murphy, of Overland Park, Kansas. He was admitted to practice law in the state of Kansas in 1987. A panel of the Kansas Board for Discipline of Attorneys made lengthy findings of fact and concluded Murphy violated the Kansas Rules of Professional Conduct (KRPC). The violations include representing both parties in a business transaction that was not disclosed to a federal bankruptcy court which had jurisdiction and related matters. In December 2016, the Disciplinary Administrator's office filed a formal complaint alleging violations of the KRPC against Murphy. Almost two years later, and after several continuances and a remand on behalf of the Disciplinary Administrator's office, an amended formal complaint was filed in January 2019. Mur- phy's answer to the amended formal complaint was filed in Feb- ruary 2019. A panel of the Kansas Board for Discipline of Attorneys began a hearing on March 5, 2019, but was unable to finish the presentation of evidence on that day so the hearing was continued to April 10, 2019. The hearing panel determined respondent violated KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence), 1.2(c) (2003 Kan. Ct. R. Annot. 332) (scope of representation), 1.7 (2003 204 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

Kan. Ct. R. Annot. 372) (conflict of interest), 2.1 (2019 Kan. S. Ct. R. 345) (independent judgment), and 8.4(d) (2019 Kan. S. Ct. R. 387) (conduct prejudicial to the administration of justice). The Disciplinary Administrator's office recommended disbarment. Counsel for the respondent recommended reprimand. The hearing panel unanimously recommended one year's suspension. The respondent filed exceptions to the panel's final hearing report, although he concedes several KRPC violations, albeit with explanations in mitigation. Before this court, the Disciplinary Ad- ministrator's office endorses the panel's findings and continues to recommend disbarment. Respondent recommends reprimand with a plan of probation. We quote the report's pertinent parts below.

"Procedural history

. . . .

"10. On February 25, 2019, the respondent filed an untimely answer to the amended formal complaint.

"11. On March 4, 2019, at 4:07 p.m., on the eve of the hearing, the respondent filed two motions. The respondent filed a motion to strike paragraph 22 of the formal complaint and a motion to prohibit a collateral attack. The hearing panel denied the respondent's motions.

. . . .

"Findings of Fact

"16. The hearing panel finds the following facts, by clear and convincing evidence:

"17. Mark D. Murphy (hereinafter 'the respondent') is an attorney at law, Kansas attorney registration number 13129. His last registration address with the clerk of the appellate courts of Kansas is 6640 West 143rd Street, Suite 250, Overland Park, Kansas 66223. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on April 15, 1987.

"18. A.H. operated a limousine service. A.H.'s company was known by a variety of names. A.H. and his wife, I.H., incorporated the limousine service under two of the names. A.H. did not follow corporate formalities and in 2003, the corporations' charters were forfeited. During their existence, the corporations did not issue any stock.

"19. In April, 2003, A.H. listed his limousine business for sale with a broker. The initial asking price was $800,000. Later, A.H. reduced the asking price to $695,000. The broker was unable to sell the limousine business.

VOL. 312 SUPREME COURT OF KANSAS 205

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"20. A.H. was interested in building a soccer complex in the Kansas City area. To that end, A.H. and B.S. formed a company to do so, called IFC. A.H. and B.S. named themselves co-presidents. To raise capital to fund the soccer complex, A.H. and B.S. entered into an advisory fee agreement with B.C., a firm which raises capital for other companies.

"21. S.L. was the chief operating officer and 50% owner of B.C. S.L. was also the respondent's neighbor. Prior to 2004, the respondent provided legal services to S.L. and B.C. From time to time, S.L. referred other clients to the respondent.

"22. S.L. referred IFC to the respondent. As a result, the respondent became counsel for IFC. The respondent drafted IFC's shareholder agreement to memorialize the relationship between its partners.

"23. On February 3, 2004, A.H. and his wife filed for the protections of chapter seven of the bankruptcy code. On a bankruptcy schedule, A.H. and his wife listed the limousine business as an asset, but valued it at $0. Regardless of the value, the limousine business was part of the bankruptcy estate.

"24. A.H. and S.L. discussed the sale of the limousine business as a means to raise capital to fund IFC. S.L., through B.C., agreed to assist A.H. in selling the limousine business.

"25. A.H.'s son and A.M.'s son played soccer together in the Kansas City area. Following a soccer practice, on March 26, 2004, A.H. and A.M. discussed A.M. purchasing A.H.'s limousine business. During their discussions regarding the possible transaction, A.H. indicated that he would be willing to sell the business for $550,000. A.H. asserted that the business netted $12,000 - $15,000 monthly. A.H., however, did not inform A.M. that he filed a chapter seven bankruptcy case nearly two months earlier.

"26. On May 5, 2004, S.L. contacted the respondent and requested the respondent assist A.H. and A.M. with the business transaction.

"27. On May 17, 2004, the respondent, S.L., A.H., and A.M. met. Thereaf- ter, the respondent drafted an engagement letter addressed to A.H. (personally and as president of the limousine business), A.M., and his wife, D.M. The letter provided:

'This letter is to confirm our agreement with regard to our representation upon the following terms:

'You hereby employ The Murphy Law Firm, P.A. to prepare all necessary documentation and advise both [A.H.], as the seller, and [A.M.], as the purchasers, of all of the capital stock of Kansas Express International, Inc., which is owned by [A.H.]. I have disclosed the potential conflicts in doing so; however, after acknowledging such conflicts you all agree to waive any such conflict and retain us nonetheless pursuant to the terms of this letter and the enclosed Stand- ard Terms of Engagement. Should a conflict arise which cannot be resolved, we 206 SUPREME COURT OF KANSAS VOL. 312

In re Murphy will withdraw from this transaction with regard to all parties in this matter, and you should then retain your own legal counsel to advise you.

'The legal fees and expenses will be paid by you, jointly and severally. . . .'

The respondent, A.H. (personally and as president of the limousine business), A.M., and D.M. signed the engagement letter.

"28. The respondent has repeatedly asserted that he represented only the transaction, he did not provide legal advice to either party, and he acted as a mere scrivener. In an affidavit, the respondent swore that the engagement letter 'expressly provided that [he] would provide no legal advice to [A.M.] and [A.H.].' In a deposition, the respondent testified under oath that he 'didn't give legal advice to either side.'

"29. Despite the respondent's statements to the contrary, the engagement letter does not expressly provide that the respondent 'would provide no legal advice to either party;' it expressly provided the opposite ('You hereby employ The Murphy Law Firm, P.A. to prepare all necessary documentation and advise both [A.H.], as the seller, and [A.M.], as the purchasers . . .')

"30. The respondent admitted this during a deposition. The respondent testified under oath, '[a]ctually, the engagement letter shows that they are both employing me to prepare the documentation and advise them both of the transfer of that business.' In the same deposition, the respondent later testified:

'The intent was to represent the seller and the buyer and basically represent the transaction, and, again, my role was basically as a scribe to do that without, again, giving any kind of, you know, standard legal advice to either side about whether it was a good deal, bad deal, terms, negotiations.'

When asked whether he explained what a stock purchase was to A.H. and A.M., the respondent stated that he 'probably did explain the differences between an asset purchase and a stock purchase transaction to them.' Finally, the respondent admitted that he 'probably made some general statements . . . in the presence of everyone [about due diligence].'

"31. The bankruptcy court later concluded that the respondent's assertion that he was a mere scrivener came 'close to being "so utterly implausible in light of conceded or irrefutable evidence that no rational person could believe [it]."'

"32. In the engagement letter, the respondent included the following: 'I have disclosed all the potential conflicts . . . , after acknowledging such conflicts you all agree to waive any such conflict and retain us nonetheless . . .' While the testimony of A.M. and the respondent are not in direct conflict on this subject, after observing all the witnesses testify and after reviewing all the evidence, the hearing panel accepts A.M.'s testimony and where the respondent's testimony is inconsistent with A.M.'s testimony on this subject, the hearing panel rejects the respondent's testimony. VOL. 312 SUPREME COURT OF KANSAS 207

In re Murphy

"33. A.M. testified that the respondent did not explain any potential conflict. A.M. testified that the respondent spent seven to 20 seconds on that provision of the engagement letter and the gist of the conversation was that if A.H. and A.M. reached an impasse in the negotiations, they would each need to hire their own lawyer to complete the transaction.

"34. On May 18, 2004, the bankruptcy court entered a discharge in A.H. and I.H.'s bankruptcy case.

"35. The respondent drafted a stock purchase agreement which provided that A.M. and D.M. would purchase the capital stock and assets of the limousine business for $550,000. The stock and assets of the corporation which was purportedly sold to A.M. under the stock purchase agreement were the property of the bankruptcy trustee.

"36. The stock purchase agreement provided that A.H. was the owner of 'all the issued and outstanding shares of [the limousine business].' The agreement, however, did not mention the possibility that A.H. used multiple names in operating the limousine business. Further, no stock was ever issued by any of A.H.'s corporations and by the time the stock purchase agreement was drafted, A.H. forfeited the corporations by failing to comply with the required formalities. Dur- ing his second deposition, the respondent testified that he would have checked with the Kansas Secretary of State to see the status of the corporation. The respondent then contradicted himself and testified:

'. . . And I think looking back, it might have been forfeited at the time for an administrative failure to file an annual report or something. But . . . we would be selling them the stock of that company that was owned by [A.H.].'

The respondent did not acknowledge that the limousine business never issued any stock.

"37. Under the stock purchase agreement, A.M. and D.M. were required to make a down payment of $105,000 and were also required to pay $170,000 at the time of closing, scheduled for July 1, 2004. At closing, A.M. and D.M. were to execute a promissory note for the remaining $275,000. The respondent drafted a pledge agreement which provided that A.M. and D.M. would secure the promissory note with the stock in the limousine business. The parties executed the stock purchase agreement on May 28, 2004.

"38. The stock purchase agreement described 16 documents and indicated the documents were attached to the agreement. The 16 documents were not attached to the agreement. It appears that none of the 16 documents were ever prepared and presented to A.H., A.M., and D.M.

"39. It is clear that at the time the stock purchase agreement was executed, A.M. and D.M. were buying A.H.'s limousine business and not his promise to work for them after the business was transferred to them.

208 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

"40. By May 28, 2004, A.M. and D.M. paid A.H. $105,000 as agreed. Then, during the month of June, 2004, A.M. and D.M. paid A.H. another $24,420. All totaled by the end of June, A.M. paid A.H. $129,420 of the agreed $550,000 purchase price.

"41. After signing the stock purchase agreement, A.M. formed a corporation for his limousine business.

"42. On June 29, 2004, A.M. went to A.H.'s office after hours to review information related to the limousine business. At that time, A.M. came across an April 15, 2004, a cell phone invoice which referenced the chapter seven bankruptcy petition. A.M. was unaware of the bankruptcy until that time. As a result, A.M. hired a private investigator to investigate details about the bankruptcy. The private investigator found detailed information regarding the bankruptcy, including Schedule B of the bankruptcy filings where A.H. listed the limousine business at zero value. On July 2, 2004, A.M. informed the respondent that A.H. filed for bankruptcy.

"43. On July 2, 2004, the respondent obtained and reviewed copies of the bankruptcy filings. When the respondent reviewed A.H.'s bankruptcy filings, he noticed that A.H. attributed zero value to the limousine business on Schedule B of the bankruptcy filings. That day, the respondent met with A.H., A.M., and D.M. The respondent recommended rescheduling the closing date in order to research the impact the bankruptcy action had on the stock purchase agreement. The parties mutually agreed to reschedule the closing based on the respondent's recommendation.

"44. After A.M. told the respondent about A.H.'s bankruptcy, the respondent was on notice that his two clients were in direct conflict with one another. The respondent did not withdraw from the representation; rather, the respondent negotiated a different deal between the parties. Further, the respondent did not seek and obtain his clients' consent to continue the joint representation after consultation regarding the conflict.

"45. On this subject, the bankruptcy court found that the respondent:

'suggested that the problems posed by [A.H.]'s bankruptcy could be avoided if the transaction was recharacterized as a sale of services instead of a sale of the business or a sale of assets. To that end he prepared a [second agreement] (which was backdated to May 28 even though it was signed on or about July 6) wherein [A.H.] agreed to provide his services to [A.M.]'s limousine company for one year in exchange for $300,000 plus incentive payments based on the performance of [A.M.]'s new limousine company. Like the Stock Purchase Agreement, the [second agreement] included a covenant not to compete; unlike the Stock Purchase Agreement, the [second agreement] specified that $50,000 of the sale price was attributable to the covenant. Despite purporting to be a services agreement, the [second agreement] contains many provisions one would expect to see only in a contract for the sale of a business or its assets.'

VOL. 312 SUPREME COURT OF KANSAS 209

In re Murphy

In the second agreement, A.M.'s corporation replaced A.M. and D.M. as the party named on their side of the transaction. The purchase price was reduced to $300,000 because A.M. could not verify the net income A.H. indicated the limousine business generated. The next day, A.H. and A.M. signed the second agreement and A.M. paid A.H. $171,000, the balance of the purchase price under the second agreement.

"46. Toward the end of July, 2004, A.M. discovered that the operations and finances of the business did not live up to A.H.'s representations. A.M. returned the office keys, abandoned the business, and attempted to rescind the transaction. A.H., however, refused to return any of A.M.'s money. A.H. apparently retained whatever tangible assets had been purportedly sold to A.M. and continued to operate the limousine business.

"47. A.H. met with the respondent to discuss his options. The respondent suggested that A.H. consult with legal counsel and the respondent referred A.H. to Cynthia (Grimes) Norton. (Since that time, Ms. Norton took the federal bankruptcy bench.) In late July, 2004, the respondent called Ms. Norton and let her know that A.H. would be calling for advice about a transaction involving a limousine deal in connection with his chapter seven bankruptcy case. Specifically, the respondent told Ms. Norton that the transaction had been structured as a sale of assets but was going to be restructured as something else because the seller was in bankruptcy. Ms. Norton told the respondent that she did not think that restructuring would work but she would talk with A.H.

"48. That same day, A.H. called Ms. Norton on her cell phone and discussed the situation with A.M. While Ms. Norton had A.H. on the phone, Ms. Norton pulled up A.H.'s bankruptcy case. She noted that an adversary proceeding was pending. Ms. Norton told A.H. that he needed to inform his attorney of the situation so that the trustee could be informed. Ms. Norton did not undertake to represent A.H.

"49. On July 26, 2004, A.H. met with his bankruptcy attorney, told his attorney about the second agreement, and provided him with a copy of the second agreement. A.H. did not disclose the existence of the stock purchase agreement to his attorney.

"50. That same day, A.H.'s attorney wrote to the bankruptcy trustee and provided him with a copy of the second agreement.

'Enclosed please find a copy of the Intrust Bank statement requested by your office in the [A.H.] case, which was provided to me today, July 26, 2004. If you will determine the balance due to the bankruptcy estate, I believe that [A.H. and his wife] will turn over those funds in a timely manner.

'Additionally, I have enclosed a copy of an agreement entered into post- petition by [A.H.]. [A.H.] is concerned that his failure to advise you of this agreement is a violation of his duties under the bankruptcy law. My understanding of 210 SUPREME COURT OF KANSAS VOL. 312

In re Murphy the agreement is that it is an agreement not to compete and to provide consultation to [A.M.] and Kansas City Limousine & Budget Limousine. As such, I do not believe that any income derived from this agreement is property of the bankruptcy estate.

'[A.H. and his wife] are very eager to finalize their bankruptcy case. I note that discharge was entered in the case on May 18, 2004. Please advise.'

"51. The bankruptcy trustee reviewed the second agreement and concluded that despite the large amount of money being paid to A.H., the payment appeared to be for services and did not constitute property of the estate.

"52. About that same time A.M. complained to the Johnson County District Attorney about what he believed to be A.H.'s fraudulent conduct. An investigation was initiated and in early 2005, an investigator met with the bankruptcy trustee. The investigator provided the bankruptcy trustee with a copy of the stock purchase agreement. This was the first time the bankruptcy trustee saw the stock purchase agreement.

"53. In January, 2005, the respondent assisted A.H. with selling the limousine business again.

"54. On April 28, 2005, Christopher Redmond wrote to the respondent regarding the sale of the limousine business from A.H. to A.M. In the letter, Mr. Redmond asserted that A.H. converted bankruptcy estate property by selling the business to A.M. Mr. Redmond characterized the second agreement as 'an attempt to defraud.'

"55. On December 7, 2005, Mr. Redmond filed an adversary proceeding. Ultimately, A.H., A.M., D.M., A.M.'s corporation, the respondent, and other individuals and entities were joined as defendants.

"56. In the adversary proceeding, the court concluded that the entire $300,420 paid by A.M. was for the business and became bankruptcy estate property. Specifically, the court found that the $129,420 was paid pursuant to the stock purchase agreement in contemplation of A.M.'s receipt of the company's assets. The court also found that the parties' intent was not changed by the execution of the second agreement. The court characterized the second agreement as a 'sham.' The court also stated, '[t]he Agreement was a thinly disguised subterfuge designed to secure the transaction's true nature; the artifice was specifically designed to skirt the bankruptcy laws.' The court also found that the $171,000 A.M. paid A.H. at closing was likewise property of the bankruptcy estate. Ultimately, the court revoked A.H.'s discharge in bankruptcy.

"57. After lengthy negotiations, on March 7, 2007, Mr. Redmond, A.M., D.M. and A.M.'s corporation entered into a settlement agreement.

"58. Then, on July 8, 2014, Mr. Redmond and the respondent entered into a settlement agreement. To settle the matter, the respondent paid Mr. Redmond $250,000. VOL. 312 SUPREME COURT OF KANSAS 211

In re Murphy

"59. A.M. and D.M. filed suit against the respondent and A.H. Included in the allegations in the petition was a claim for legal malpractice against the respondent. In 2018, the case went to trial. The jury found the respondent to be 20% at fault, A.M. and D.M. to be 44% at fault, and A.H. to be 36% at fault.

"60. On February 25, 2016, A.M. filed a complaint with the disciplinary administrator regarding the respondent. On April 11, 2016, the respondent provided a written response to A.M.'s complaint. In this final hearing report, the hearing panel has referenced relevant items of evidence from the adversary proceeding as well as the lawsuit filed by A.M. and D.M. For purposes of the disciplinary proceeding, a detailed recitation of the history of the two lawsuits is not relevant to the allegations in the formal complaint filed in this case.

"Conclusions of Law

"61. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1 (competence), 1.2(c) (scope of representation), 1.7 (conflict of interest), 2.1 (exercise independent judgment), and 8.4(d) (conduct prejudicial to the administration of justice), as detailed below.

"62. The hearing panel notes that KRPC 1.2 (scope of representation) and KRPC 1.7 (conflict of interest) have been amended since the respondent engaged in the misconduct. The hearing panel is relying on the rules that were in effect at the time the respondent engaged in the misconduct.

"KRPC 1.1

"63. Lawyers must provide competent representation to their clients. 'Com- petent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent failed to provide A.M. with competent representation. In the engagement letter, the respondent agreed to advise A.M. (as well as A.H.) regarding the transaction. De- spite his agreement to advise A.M., the respondent failed to competently advise A.M. regarding the transaction. The respondent was unaware that A.H. filed bankruptcy and listed the limousine business as an asset with a $0 value. Further, at the hearing on the formal complaint, the respondent admitted that he would not counsel a client to enter into the agreements involved in this matter because there are no barriers to enter the limousine service market. Moreover, the respondent admitted that he was not versed in bankruptcy. Clearly, the respondent failed to give A.M. (as well as A.H.) competent counsel regarding the transaction particularly in light of the bankruptcy case. The hearing panel concludes that the respondent failed to provide competent representation to A.M., in violation of KRPC 1.1.

"KRPC 1.2(c)

"64. In 2004, KRPC 1.2(c) remained in its original form and provided that '[a] lawyer may limit the objectives of the representation if the client consents 212 SUPREME COURT OF KANSAS VOL. 312

In re Murphy after consultation.' In this case, the respondent did not obtain A.M.'s consent to limiting his representation. In fact, the engagement letter provided to the contrary. The engagement letter clearly stated that the respondent would 'advise both [A.H.], as the seller, and [D.M. and A.M.], as the purchasers'. A.M. relied on the language in the engagement letter that he would advise A.M. regarding the transaction. A.M. retained the respondent to prepare all the necessary documents and to advise him on the deal. Nowhere in the respondent's engagement letter does the respondent indicate that he is limiting his representation or serving as a 'mere scrivener.' The respondent admitted that he advised the parties on matters during the representation. Upon review of this same issue, the bankruptcy court concluded that the respondent's assertion that he was a mere scrivener came 'close to being "so utterly implausible in light of conceded or irrefutable evidence that no rational person could believe [it]."' Accordingly, the hearing panel concludes that the respondent violated KRPC 1.2(c), as it existed in 2004.

"KRPC 1.7

"65. In 2004, KRPC 1.7 provided:

'(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

'(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Consultation was and still is defined in the rules as 'communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.'

"66. In the engagement letter, the respondent purported to comply with KRPC 1.7. The respondent stated that he had disclosed 'the potential conflicts . . . [and] after acknowledging such conflicts you all agree to waive any such conflict and retain us nonetheless.' Based on the record before it, the hearing panel concludes that the provision in the engagement letter does not satisfy the consent after consultation requirement of KRPC 1.7.

VOL. 312 SUPREME COURT OF KANSAS 213

In re Murphy

"67. First, as of July 1, 2014, when the respondent learned of A.H.'s bankruptcy, the respondent was placed on actual notice of a direct conflict of interest between his two clients. The respondent was prohibited from continuing to represent both clients, unless each client consented after consultation. The respondent did not withdraw from the representation nor did he obtain each client's consent after consultation. Rather, as found by the bankruptcy court, the respondent suggested to A.M. and A.H. that he draft a second agreement to attempt to work around the bankruptcy. As such, the hearing panel concludes that the respondent violated KRPC 1.7(a).

"68. Second, the respondent never disclosed to A.M. his previous personal and professional relationship with S.L. and his previous professional relationship with IFC. It is clear that the respondent's previous personal and professional relationship with S.L. and his previous professional relationship with IFC, may have materially limited the respondent's representation of A.M. in this case. The respondent did not explain the conflict to A.M. nor did he seek or obtain A.M.'s consent to this conflict. The hearing panel concludes that the respondent's failure in this regard amounts to a violation of KRPC 1.7(b).

"KRPC 2.1

"69. Lawyers must exercise independent professional judgment and render candid advice. KRPC 2.1. In this case, the respondent failed to exercise independent professional judgment and render candid advice to A.M. when he failed to advise A.M. of the potential and actual problems with entering the agreements. The respondent's judgment was influenced by the economic factors relevant to the entire situation, particularly so given his previous relationships with S.L. and IFC. The respondent's failure to exercise independent professional judgment and candid advice is particularly egregious after the respondent learned of A.H.'s bankruptcy. Moreover, the respondent testified that he would not have advised 'an independent' client to proceed as A.M. proceeded because there are no barriers to enter the limousine service business. As A.M.'s attorney, under KRPC 2.1, the respondent owed him the duty to exercise independent judgment and render candid advice. The hearing panel concludes that the respondent failed to do so in violation of KRPC 2.1.

"KRPC 8.4(d)

"70. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' Rule 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he drafted the second agreement in an attempt to circumvent the bankruptcy case. The respondent knew that the assets of the limousine service, regardless of their value, were part of the bankruptcy estate. The hearing panel agrees with the bankruptcy court that attempting to restructure the deal was 'a thinly disguised subterfuge designed to secure the transactions true nature; the artifice was specifically designed to skirt the bankruptcy laws.' The respondent's attempt to skirt the bankruptcy laws violated KRPC 8.4(d).

214 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

"71. In 1982, the Kansas Supreme Court considered an attorney disciplinary case that presented a similar factual scenario. The respondent in State v. Callahan, 232 Kan. 136 (1982), represented both parties, L.L. and R.F., in a land transaction. L.L. had been the respondent's long time client and was also the respondent's business partner. L.L. suggested to R.F. that the respondent handle the transaction for both of them. R.F. agreed and the respondent drafted two contracts for L.L. and R.F. Relying on Mr. Callahan's advice, R.F. executed the contracts. The terms were favorable to L.L. and ultimately, L.L. did not pay the balance on the land. R.F. believed that the respondent had secured her interest in the land by recording a lien on her behalf. Unbeknownst to her, the respondent did not record a lien and R.F. did not have a secured interest in the property. In the disciplinary proceeding, the respondent argued that he did not represent R.F., but rather he was a 'mere scrivener.'

"72. The Court summarized the case as follows:

'. . . [R.F. and her family] relied upon respondent to represent them as their lawyer rather than as a mere scrivener. He failed to disclose his close business ties with [L.L.] and to exercise his independent professional judgment [on] behalf of . . . [R.F. and her family] in preparing the contracts for the sale. His delay in apprising [R.F. and her family] that they had no foreclosable interest was less than an honest representation.'

"73. Callahan is remarkably similar to the case at hand. Callahan and the respondent both failed to exercise independent professional judgment on behalf of their clients in rendering advice and drafting the agreements. Callahan and the respondent drafted documents which were unfavorable to one of their clients in favor of their other client. The injured parties in both cases, R.F. and A.M., relied to their detriment on their attorneys to provide independent professional judgment and candid advice regarding the transaction. Callahan argued, as the respondent does here, that he was a mere scrivener. Callahan had an existing relationship with the other party who stood to gain if the transaction was completed. Here the respondent had an existing relationship with S.L. and IFC who both stood to benefit if the agreements were entered. Callahan delayed informing R.F. that she did not have a secured interest in the property. Here, the respondent never informed A.M. of the loss he would suffer because the limousine business was part of the bankruptcy estate.

"74. The Callahan case was decided under the old disciplinary rules. The Court in that case, found that Mr. Callahan violated DR 1-102(A)(4) (conduct that involves dishonesty, fraud, deceit, or misrepresentation), DR 5-105(B) and (C) (conflict of interest), and DR 6-101(A)(3) (neglecting a legal matter). The Court indefinitely suspended Mr. Callahan's license to practice law.

"75. Because of the factual similarities between Callahan and the present case, the hearing panel finds the Court's consideration of Callahan to be persuasive.

"American Bar Association Standards for Imposing Lawyer Sanctions

"76. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for VOL. 312 SUPREME COURT OF KANSAS 215

In re Murphy

Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.

"77. Duty Violated. The respondent violated his duties to his client to provide competent representation and to refrain from engaging in conflicts of interest. The respondent likewise violated his duty to the legal profession to refrain from engaging in activity that is prejudicial to the administration of justice.

"78. Mental State. The respondent knowingly and intentionally violated his duties.

"79. Injury. As a result of the respondent's misconduct, the respondent caused actual, serious injury. As a result of the respondent's failure to exercise independent professional judgment and render candid advice, A.M. paid A.H. $300,420 for a business which A.H. did not own and which A.H. had previously valued at $0. Additionally, as a result of the respondent's misconduct and in an attempt to recover some of the $300,420 he lost, A.M. filed suit. The litigation lasted nearly 15 years.

"Aggravating and Mitigating Factors

"80. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:

"a. Prior Disciplinary Offenses. While the respondent had not yet been disciplined at the time the misconduct occurred in this case, the respondent now has a history of prior disciplinary offenses. Specifically, the respondent has been previously disciplined on two occasions.

(1) On June 17, 2011, the respondent entered into a diversion agreement with the disciplinary administrator's office. In the diversion agreement, the respondent stipulated that he violated KRPC 1.2 (scope of representation), KRPC 1.3 (diligence), KRPC 1.8 (conflict of interest), KRPC 1.15 (safekeeping property), KRPC 3.2 (expediting litigation), and KRPC 8.4 (professional misconduct).

(2) On December 19, 2017, a deputy disciplinary administrator informally admonished the respondent for violating KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 5.1 (responsibilities of supervising lawyers), and KRPC 5.3 (responsibilities regarding nonlawyer assistance).

"b. Dishonest or Selfish Motive. Throughout the extensive litigation on the matter and throughout the disciplinary proceedings, the respondent falsely characterized his role as a mere scrivener. Characterizing his role in this fashion was dishonest. The respondent (improperly) agreed to represent both sides to an 216 SUPREME COURT OF KANSAS VOL. 312

In re Murphy agreement. By agreeing to represent A.M., he agreed to provide A.M. with independent and candid advice. Likewise, characterizing his role as a mere scrivener was also selfish. In so doing, the respondent sought to minimize his culpability in this matter. The respondent's dishonest and selfish motivation in this case is a considerable aggravating factor.

"c. A Pattern of Misconduct. Over the course of years, the respondent repeatedly falsely asserted that his role in the matter was that of a mere scrivener. Because the respondent repeatedly falsely asserted that he was a mere scrivener, he engaged in a pattern of misconduct.

"d. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1 (competence), 1.2(c) (scope of representation), 1.7 (conflict of interest), 2.1 (exercise independent judgment), and 8.4(d) (conduct prejudicial to the administration of justice). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.

"e. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent has refused to acknowledge any wrongdoing.

"f. Vulnerability of Victim. A.M. was vulnerable to the respondent's misconduct. He is not an attorney; he relied on the respondent to provide him independent professional judgment and candid advice.

"g. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1987. At the time of the misconduct, the respondent had been practicing law for 17 years.

"81. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:

"a. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. While the respondent fully cooperated with the disciplinary process, the respondent did not acknowledge his transgressions.

"b. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.

"c. Delay in Disciplinary Proceedings. The respondent argued that there was a delay in the disciplinary proceedings. A.M. filed the complaint in 2016. While the litigation remaining pending, and at the request of the respondent, the case was put on hold until after the litigation was resolved. While the disciplinary VOL. 312 SUPREME COURT OF KANSAS 217

In re Murphy complaint was not filed at the time of the misconduct, the disciplinary proceedings have not been delayed other than at the request of the respondent. This is not a mitigating factor.

"d. Imposition of Other Penalties or Sanctions. The respondent settled the dispute with the bankruptcy trustee by paying $250,000. Additionally, following a five day jury trial, the respondent was found to be 20% liable for A.M.'s $171,000 loss.

"e. Remorse. In his closing argument, counsel for the respondent referenced the respondent's remorse in this case. The hearing panel reviewed the transcript and found the following:

'A. . . . In hindsight, I wish I would have ran. My crazy. I'm so sorry to everybody that I didn't. What I was trying to do, though, was help two people who really wanted to do a deal together, if they came to terms, do a deal under the—under the boundaries of what I was doing. I was just doing what I was asked. Is that a good excuse? No, it's not. Should I have made calls, no I shouldn't have. I've kicked myself for the last 15 years I guess for that. So, no, I should have done things, but I didn't.'

"82. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:

'4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.

'5.11 Disbarment is generally appropriate when:

. . . .

'(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

'5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law.

'6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

'6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. 218 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

'7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.'

"Recommendation

"83. The disciplinary administrator recommended that the respondent be disbarred. Counsel for the respondent recommended that the respondent be reprimanded for the misconduct.

"84. Based upon the findings of fact, conclusions of law, the Standards listed above, and In re Callahan, the hearing panel unanimously recommends that the respondent's license to practice law in Kansas be suspended for a period of one year.

"85. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the panel's findings, and the parties' arguments and determines whether KRPC violations exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see also Supreme Court Rule 211(f) (2019 Kan. S. Ct. R. 257) (a misconduct finding must be established by clear and convincing evidence). "Clear and convincing evidence is 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). Respondent was given adequate notice of the formal complaint to which he filed an untimely answer without objection by the Discipli- nary Administrator. Respondent was also given adequate notice of the hearing before the panel and the hearing before this court. Murphy filed exceptions to portions of the final hearing report. See Supreme Court Rule 212(c)(2) (2019 Kan. S. Ct. R. 261). We address those first.

Exceptions to the panel's report

"When a respondent does not take exception to a finding it is deemed admitted. But when an exception is taken, the panel's findings are not typically deemed admitted, so the court must determine whether the disputed findings are supported by clear and convincing evidence. In making this determination, the court does not weigh conflicting VOL. 312 SUPREME COURT OF KANSAS 219

In re Murphy evidence, assess witness credibility, or redetermine questions of fact. If a disputed finding is supported by clear and convincing evidence, it will not be disturbed. [Citations omitted.]" In re Hodge, 307 Kan. 170, 209-10, 407 P.3d 613 (2017).

Murphy took exception to 31 of the findings in the final hearing report: 2 of the panel's procedural history statements (Report, ¶¶ 10-11), 14 of the factual findings (Report, ¶¶ 16, 22, 25, 29, 31- 33, 36, 38, 42, 44, 45, 49, 56), 7 of the legal conclusions (Report, ¶¶ 63, 64, 66, 67, 69, 70, 73), and 8 of the findings concerning the recommended discipline. (Report, ¶¶ 78, 79, 80.b-c., 80.f., 81.a., 81.c., 81.e.). Most of the exceptions are incorporated into Murphy's amended brief, but some are not. A respondent who does not advance arguments in a brief that support exceptions to the final hearing report is deemed to have abandoned or waived those exceptions. In re Owens, 309 Kan. 80, 88, 431 P.3d 832 (2018). We hold Murphy has abandoned his exceptions to the final hearing report ¶¶ 10, 11, 25, 31, and 56, although by necessity aspects of each are included below. The remaining exceptions are addressed in context when discussing the panel's findings, conclusions, and recommendation. We begin with KRPC 1.2(c) because it forms the basis for later findings on the other violations.

Did Murphy Violate KRPC 1.2(c)?

KRPC 1.2(c), as it existed in 2004, declared, "A lawyer may limit the objectives of the representation if the client consents after consultation." KRPC 1.2(c) (2003 Kan. Ct. R. Annot. 333). The panel concluded at ¶ 64 that Murphy violated KRPC 1.2(c) by limiting the scope of his representation without obtaining A.M.'s valid consent. Murphy concedes he violated KRPC within the context of his exceptions. Murphy appears to assert A.M. consented to his limited representation, by alleging (1) "it was undisputed that respondent was [hired] to just draft the transaction agreement to reflect the agreement reached between A.H. and A.M."; and (2) "this is exactly how the parties acted and carried out the transaction." Seemingly, he argues there was an implicit understanding among the parties 220 SUPREME COURT OF KANSAS VOL. 312

In re Murphy who signed the engagement letter that Murphy was serving simply as a scrivener and would not give legal advice. But the evidence does not support Murphy's myopic view of his limited role in these transactions. Rather, as found by the panel, clear and convincing evidence supports his violation of KRPC 1.2(c). First, his claim that the engagement letter "does not suggest respondent give legal advice to either party" and that "he was only retained to prepare the documents to memorialize the transaction" is flatly contrary to the letter's plain language. It provides:

"You hereby employ The Murphy Law Firm, P.A. to prepare all necessary documentation and advise both [A.H.], as the seller, and [A.M.], as the purchasers, of all of the capital stock of Kansas Express International, Inc., which is owned by [A.H.]. I have disclosed the potential conflicts in doing so; however, after acknowledging such conflicts you all agree to waive any such conflict and retain us nonetheless pursuant to the terms of this letter and the enclosed Stand- ard Terms of Engagement. Should a conflict arise which cannot be resolved, we will withdraw from this transaction with regard to all parties in this matter, and you should then retain your own legal counsel to advise you. "The legal fees and expenses will be paid by you, jointly and severally . . . ." (Emphases added.)

Nowhere does it state Murphy would act only as a scrivener and not offer legal advice to A.M. On its face, the letter states: "The Murphy Law Firm" was hired to "advise" both the seller and the buyer, and if "a conflict arise[s]," the clients were to retain their own legal counsel to advise them. In other words, according to the letter, he was being hired as an attorney to provide his legal advice up until the parties encountered some unresolvable conflict. In the related bankruptcy proceeding, the court found "the provisions of the engagement letter could certainly have given a reasonable person in [A.M.]'s position the idea that Murphy was going to act as his and [A.H.]'s attorney for the transaction, and not as a mere scrivener who would offer no legal advice." See Re- statement (Third) of the Law Governing Lawyers § 18(2) (2000) ("A tribunal should construe a contract between client and lawyer as a reasonable person in the circumstances of the client would have construed it."). The panel's conclusion is not only supported VOL. 312 SUPREME COURT OF KANSAS 221

In re Murphy by the plain language, but also by A.M.'s testimony. See Restate- ment (Third) of the Law Governing Lawyers § 19, comment c (2000) ("[A]ny contract limiting the representation is construed from the standpoint of a reasonable client."). We agree. And at the disciplinary hearing, A.M. testified there was no consultation about limiting the scope of Murphy's representation nor did A.M. consent to any limitation. When asked by the Disci- plinary Administrator—"Did Mr. Murphy ever make any representations to you that I am providing no legal advice to you about this arrangement?"—A.M. answered, "Absolutely not." A.M. further noted he believed Murphy's representation included providing legal advice to him on "any circumstances that involved the agreement." This evidence shows how A.M. understood what Murphy was to do in representing A.M.'s interests. Murphy even admitted at the hearing that he provided "a little bit of advice" and "made a couple of suggestions here and there" during his involvement. And the record reflects that before the bankruptcy issue arose, Murphy advised both A.M. and A.H. on the difference between an asset purchase and a stock purchase and recommended doing it as a stock purchase. Murphy also "made some general statements" about due diligence. And on the issue of the corporation's forfeited status, Murphy advised A.M. not to be concerned because it could be remedied before closing. That advice satisfied A.M. Also, when A.M. objected to including S.L.'s broker's commission in the agreement, Murphy disagreed and told A.M. it was relevant, customary, and for A.M.'s benefit. Clear and convincing evidence exists to support the panel's conclusion that Murphy violated KRPC 1.2(c) by limiting the scope of his representation without A.M.'s consent after consultation.

Did Murphy Violate KRPC 1.7?

In 2004, KRPC 1.7 provided:

"(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. 222 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." KRPC 1.7 (2003 Kan. Ct. R. Annot. 372).

The panel concluded Murphy violated KRPC 1.7(a) in two ways: First, at the beginning of the representation, there existed a directly adverse representation between A.M. and A.H., but Mur- phy failed to satisfy the consent-after-consultation requirement under subsection (a)(2); and second, he "was placed on actual notice of a direct conflict of interest between his two clients" when he learned of A.H.'s bankruptcy, but Murphy continued to represent them without obtaining each client's consent after consultation under the same subsection. The panel also determined Mur- phy violated KRPC 1.7(b) upon a finding that he "never disclosed to A.M. his previous personal and professional relationship with S.L. and his previous professional relationship with IFC," which "may have materially limited [his] representation of A.M. in this case," and he failed to "explain the conflict to A.M. nor did he seek or obtain A.M.'s consent to this conflict." Murphy concedes violations of both subsections, although he again equivocates some on KRPC 1.7(a). Since Murphy does not specifically challenge the subsection (b) violation involving S.L. and IFC, our analytical focus is on subsection (a). See Supreme Court Rule 212(c) (2019 Kan. S. Ct. R. 262) ("Any part of the hearing report not specifically excepted to shall be deemed admitted."); In re Kupka, 311 Kan. 193, 203, 458 P.3d 242 (2020) (issues deemed admitted when respondent "did not file exceptions to the hearing panel's final hearing report"). "[A] lawyer may not represent multiple parties to a negotia- tion whose interests are fundamentally antagonistic to each other." Comment 28 to KRPC 1.7 (2019 Kan. S. Ct. R. 313). "Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in VOL. 312 SUPREME COURT OF KANSAS 223

In re Murphy negotiations with a buyer represented by the lawyer . . . ." Com- ment 7 to KRPC 1.7 (2019 Kan. S. Ct. R. 309). We hold the panel correctly determined Murphy's representation of both A.M. and A.H. in the sale of the limousine business amounted to a conflict and was prohibited unless each client consented after consultation. See In re Hodge, 307 Kan. at 219 (respondent violated KRPC 1.7[a] when simultaneously representing seller and buyer in the ranch sale); State v. Callahan, 232 Kan. 136, 139-40, 652 P.2d 708 (1982) (holding a conflict of interest when a lawyer represented both sellers and purchaser in land sale transaction). The panel concluded Murphy failed to provide "adequate consultation" for a valid consent as required by KRPC 1.7(a)(2). Mur- phy claimed in his exceptions that he obtained A.M.'s consent as evidenced by the engagement letter signed by A.M. He insists "the engagement letter specifically stated that in the event of a conflict, the parties would need to obtain separate counsel and the uncon- troverted evidence reflected that both [parties] were advised by respondent to consult with separate [counsel] on several occasions." But that misses the point. The panel's finding is not about whether the parties consented in writing to obtaining separate counsel if a conflict occurred in the future, or whether they were advised in writing to consult with separate counsel. Rather, its finding is about Murphy's lack of adequate consultation prior to securing A.M.'s valid consent to the obvious potential conflict from Murphy's dual representation of both parties. See KRPC 1.0(c) (2019 Kan. S. Ct. R. 292) ("'Consult' or 'Consultation' de- notes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question."). The evidence fully supports the panel's decision: A.M. testified Murphy "did not explain any potential conflict" and "spent seven to 20 seconds on that provision of the engagement letter and the gist of the conversation was that if A.H. and A.M. reached an impasse in the negotiations, they would each need to hire their own lawyer to complete the transaction." And Murphy does not take exception to this finding. As the Disciplinary Administrator notes, no explanation was offered "about the nature of the conflict itself, what conflicts could arise, how 'secrets' would be handled, 224 SUPREME COURT OF KANSAS VOL. 312

In re Murphy or any other information a lay person would need to have explained to understand the true nature of the conflict and the significance of waiving it."

Comment 6 to KRPC 1.0 (2019 Kan. S. Ct. R. 294) states:

"The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client . . . possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client . . . of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's . . . options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel."

It is also noteworthy that the hearing panel found A.M.'s testimony more credible than Murphy's. See In re Hodge, 307 Kan. at 210 ("[T]he court does not weigh conflicting evidence, assess witness credibility, or redetermine questions of fact. If a disputed finding is supported by clear and convincing evidence, it will not be disturbed."). Next, Murphy challenges the final hearing report ¶ 67, asserting that when he learned of the bankruptcy issue, he "[believed] them to be consenting to his continued work." But "a lawyer may not assume consent from a client's or other person's silence." Com- ment 7 to KRPC 1.0 (2019 Kan. S. Ct. R. 294). In his reply brief, Murphy concedes, "Unfortunately, when the Seller's bankruptcy came to light Respondent should have withdrawn." And Murphy admits he did not have the required consultation to obtain A.M.'s valid consent. The evidence in the record and Murphy's concessions to this court support the panel's findings on his KRPC 1.7 violations.

Did Murphy Violate KRPC 2.1?

The panel determined Murphy did not exercise independent professional judgment and render candid advice to his client in violation of KRPC 2.1 (2019 Kan. S. Ct. R. 345). For support, it found: (1) his "judgment was influenced by the economic factors relevant to the entire situation, particularly so given his previous VOL. 312 SUPREME COURT OF KANSAS 225

In re Murphy relationships with S.L.[] and IFC"; (2) he failed to advise A.M. of the potential and actual problems with entering both agreements; (3) his failure to comply with KRPC 2.1 was "particularly egregious after [he] learned of A.H.'s bankruptcy"; and (4) Murphy testified "he would not have advised 'an independent' client to proceed as A.M. proceeded because there are no barriers to enter the limousine service business." See KRPC 2.1 ("In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."). First, Murphy challenges the panel's conclusion that his representation was influenced by his relationships with S.L. and IFC. Murphy claims he received no consideration from them with regard to the transaction at issue. He admits S.L. asked him to draft a document for IFC but argues IFC did not hire him or pay him anything. But as correctly noted by the Disciplinary Administra- tor, there is ample evidence supporting the panel's finding that Murphy's relationships with the third parties would have influenced his independent professional judgment. During the 2006 deposition prepared for A.H.'s bankruptcy case, the following colloquy occurred:

"[Counsel for the trustee:] . . . [Y]ou've brought two other files, one labeled 'International Football Club, Inc., General Representation'; is that right? "[Murphy:] Yes. . . . . "[Murphy:] . . . I got involved in the beginnings of [IFC]. It didn't go very far. At least, my involvement didn't go very far. . . . . "[Counsel for the trustee:] Who were your client contacts for [IFC]? "[Murphy:] [B.S.] and [A.H.] and Preki[, who is a soccer player.] . . . . "[Counsel for the trustee:] And how was it that you came to represent [IFC]? Were you referred by someone? "[Murphy:] Yes. [S.L.] . . . . "[Counsel for the trustee:] What did you do for [IFC]? "[Murphy:] I was brought in basically to try to memorialize . . . an arrangement between the founding members, [including A.H.], as to the operation of the [IFC]. That never was finalized either, at least not with my involvement."

Murphy's testimony supports the panel's conclusion that he had a prior relationship with S.L. and IFC. Since A.H. was an IFC 226 SUPREME COURT OF KANSAS VOL. 312

In re Murphy founding member, it appears Murphy's relationship with both influenced his representation in the transaction between A.H. and A.M. And the fact Murphy was not paid for his work drafting the IFC shareholder agreement does not negate the existence of a lawyer-client relationship. See In re Hodge, 307 Kan. at 212 (existence of lawyer-client relationship is not dependent upon payment of a fee). Second, Murphy concedes he had a previous relationship with S.L., who referred him business from time to time, including the IFC matter and the limousine sale matter. He attempts to minimize this relationship by stating "like most attorneys, [he] receives re- ferrals from existing client[s] for new clients. That is what occurred here." But as correctly argued by the Disciplinary Admin- istrator, "[t]his was not the common scenario where an existing client refers a potential client for representation on some unrelated matter. Here, there was an interconnected relationship between the parties and the transactions." In the final hearing report, the panel found the following facts: A.H. and B.S. formed IFC. To raise capital for IFC, A.H. entered into an advisory fee agreement with B.C., a firm that raises capital for other companies. S.L. was the chief operating officer and 50% owner of B.C.; S.L. referred IFC to Murphy. Murphy became counsel for IFC. S.L. referred A.M. and A.H. to Murphy for the transaction at issue. And these facts are undisputed facts. For this it is easy to conclude S.L. not only had a financial interest in both transactions, but that S.L. benefited directly from the limousine sale. Murphy acted for S.L.'s benefit by including a provision for his brokerage fee in both agreements over A.M.'s objection by saying the commission was "relevant" and telling A.M. the provision was included for A.M.'s benefit. Third, Murphy disputes the panel's finding that his conduct was "particularly egregious" after he learned of the bankruptcy matter. He insists the panel failed to consider that he referred both clients to separate counsel for independent advice on the situation immediately after hearing of A.H.'s bankruptcy. He claims the clients came back later, announcing they had resolved the conflict, and directed Murphy to prepare a new agreement with terms and VOL. 312 SUPREME COURT OF KANSAS 227

In re Murphy conditions they negotiated without Murphy. But Murphy's factual statements are unsupported by the evidence. At that time, he did not refer A.M. to another counsel; he said he would, but he did not. Rather, Murphy told A.M. there was no other option but to restructure the agreement. Murphy "[n]ever" told A.M. he had the option to walk away "from this whole deal." Nevertheless, Murphy testified "he would not have advised 'an independent' client to proceed as A.M. proceeded . . . ." This shows he did not consider A.M. to be an "independent client" entitled to the duties owed any other clients. Murphy specifically told A.M. that "this was our only option" to avoid the bankruptcy problem. Furthermore, and contrary to his assertion that he "ceased working on the transaction upon learning about the bankruptcy," and that none of the "terms and conditions were 'negotiated' by [him], but rather provided by the parties," his own testimony supports the panel's finding that he gave legal advice to the parties after the bankruptcy issue emerged. For instance, the evidence shows: (1) Murphy told the clients there were no bankruptcy estate assets involved in the provision of services; (2) he said to the clients the company did not have any value, so they were only buying [A.H.]'s expertise and contacts; and (3) he helped A.H. and A.M. overcome the impasse on the price for the new "services" agreement by recommending adding an incentive payment provision that would reward A.H., if the company did better than A.M. expected. We hold clear and convincing evidence exists to sustain the panel's conclusion that Murphy violated KRPC 2.1 by selectively giving advice and withholding advice in ways that benefitted the interests of A.H., S.L., and the IFC transaction, to the detriment of A.M.

Did Murphy Violate KRPC 1.1?

The panel concluded Murphy failed to provide competent representation to A.M. in the limousine business sale transaction, in violation of KRPC 1.1 (2019 Kan. S. Ct. R. 295). Under KRPC 1.1, "[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." For support, the panel noted: (1) Murphy failed 228 SUPREME COURT OF KANSAS VOL. 312

In re Murphy to treat A.M. as an "independent client" and did not offer A.M. candid advice concerning the transaction; (2) he failed to become aware that A.H. had filed for bankruptcy and listed his business with a zero value; and (3) Murphy admitted that he was not familiar with bankruptcy law. Murphy acknowledged the KRPC 1.1 violation to this court, but again with some equivocation. Our analysis will focus on the second and third findings because we addressed the panel's first finding above. Murphy argues that under the limited scope of his representation, he had no duty to know anything about A.H.'s business and no duty to discover the bankruptcy, but that once he learned about the bankruptcy matter, he acted competently by reviewing the case on PACER, seeking assistance from colleagues who practice in that area, and by referring both clients to separate counsel. He also claims he had enough bankruptcy knowledge to prepare the second agreement and the bankruptcy trustee "approved that document." Murphy repeatedly insists throughout his amended brief that the bankruptcy trustee "approved" the second agreement. These positions clearly mischaracterize the evidence. The bankruptcy trustee only determined the second agreement was a contract for A.H.'s future services and, therefore, that payments to A.H. were not bankruptcy estate property. And that placation was only temporary, as it was accomplished by failing to disclose the first agreement. The adversary proceeding that followed resulted in the bankruptcy court's finding that the funds paid under the second agreement were in fact for the business and were bankruptcy estate property. Moreover, a review of the record Murphy references in support of his argument actually shows the second agreement "sur- prised" the trustee because of the dollar amount involved in that transaction. The trustee called A.H.'s bankruptcy attorney to find out what was going on. The trustee thought A.M. paying "$300,000" for A.H.'s "advice of how to run a limousine business . . . sound[ed] absolutely crazy" and did not "make any sense at all." In that context, the trustee further noted generally he does not have "any problem" when an agreement transfers no assets. But Federal District Judge Smith found "the [second agreement] contains many provisions one would expect to see only in a contract VOL. 312 SUPREME COURT OF KANSAS 229

In re Murphy for the sale of a business or its assets." In short, the trustee did not "approve" the second agreement. Murphy's assertion that he provided competent representation within the limited scope of his representation also fails for several reasons. First, as previously discussed, he failed to obtain a valid consent after consultation under KRPC 1.2(c) to the alleged limited scope. Second, even assuming he had satisfied KRPC 1.2(c)'s requirement, that consent would not have relieved him of the duty of competence owed A.M. See Comment 5 to KPRC 1.2 (2019 Kan. S. Ct. R. 297) ("[T]he client may not be asked to agree to representation so limited in scope as to violate Rule 1.1."). Third, Murphy conceded he "would have looked at the Kansas Secretary of State to see where the corporation was," and when "looking back, it might have been forfeited at the time for an administrative failure to file an annual report or something." See KRPC 1.1 (competent representation requires thoroughness and preparation reasonably necessary for the representation). Finally, Murphy argues his effort to get advice from a bankruptcy colleague shows he acted competently. See Comment 1 to KRPC 1.1 (A lawyer who does not have the legal knowledge required for a particular matter may nonetheless provide competent representation by "associat[ing] or consult[ing] with . . . a lawyer of established competence in the field in question."); see also Comment 2 to KRPC 1.1 ("A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. . . . A lawyer can provide adequate representation in a wholly novel field through necessary study."). And Murphy concedes his primary area of practice was matters involving business transaction and business litigation. But while he notes he "sought out consultation with regular bankruptcy practitioners," he does not cite to the record facts to support that argument. In re Hawver, 300 Kan. 1023, 1039, 339 P.3d 573 (2014) (respondent's argument deemed abandoned or waived if respondent's brief advances argument without proper citation to the record to support that claim). Importantly, the evidence shows Murphy did not consult with any bankruptcy colleagues before offering legal advice to his clients that their transaction should be restructured as a service agreement. And while 230 SUPREME COURT OF KANSAS VOL. 312

In re Murphy he may have attempted to consult with a bankruptcy attorney, he went ahead and gave advice, saying A.M.'s only option was redrafting the agreement as one for services. We hold clear and convincing evidence supports the panel's holding that Murphy failed to provide A.M. with the legal knowledge, skill, thoroughness, and preparation required by KRPC 1.1.

Did Murphy Violate KRPC 8.4(d)?

The panel determined that when Murphy drafted the second agreement in an attempt to circumvent the bankruptcy problem, he violated KRPC 8.4(d) (2019 Kan. S. Ct. R. 387) ("It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."). For support, the panel noted he "knew that the assets of the limousine service, regardless of their value, were part of the bankruptcy estate." The panel agreed with the bankruptcy court's finding that "attempting to restructure the deal was 'thinly disguised subterfuge designed to secure the transactions true nature; the artifice was specifically designed to skirt the bankruptcy law.'" Murphy challenges the panel's conclusion by making the same un- substantiated arguments he advanced on the other issues including that A.M. and A.H. independently negotiated the terms and conditions of the second agreement without Murphy's assistance, and again asserting that the "very agreement was approved by the bankruptcy trustee." The remaining contentions for this violation are: (1) Murphy "belie[ved] that the second agreement did not involve bankruptcy estate asset"; and (2) the panel's reliance on the bankruptcy court's comment is "totally prejudicial" since he was not at that trial. As to his first assertion, and contrary to what is stated in his amended brief, Murphy noted in his exceptions that "respondent knew that any assets of the limousine business would be bankruptcy estate asset." (Emphasis added.) And because he changed some language in the second agreement, he believed it "would not violate any bankruptcy law." But this just shows Murphy at least knew the new agreement skirted the law and restructured the contractual language to that effect. Moreover, the services agreement expressly included asset transfers, including the office leases, office furniture, and the 1999 Lin- coln Town Car and 2001 Lincoln Navigator, although it stated the leases had no value. VOL. 312 SUPREME COURT OF KANSAS 231

In re Murphy

Murphy also characterized the second agreement as an asset sale in a later agreement he drafted for A.H. involving the sale of the limousine business to Tess Limousine and Airport Services, Inc. This so- called Tess Agreement included a paragraph that referenced the previous agreement between A.H. and A.M. And that paragraph characterized the transaction as a sale of the limousine business and its assets:

"A prior agreement had been entered into by [A.H.] with [A.M.] for the sale of [A.H.'s] business to [A.M.]; however, following the closing thereunder, on July 30, 2004 [A.M.] abandoned all assets to be acquired thereunder, and failed to take assignment of the office lease, and the leases on the subject vehicles of this Agreement, also making no payments on either the office lease or the vehicles."

Murphy's argument that the second agreement was not a business or asset sale, but merely a sale of services, contradicts how he described those same items in the Tess Agreement that he also drafted. As to his second claim, this issue should be deemed abandoned because he raises it only incidentally and with no authority. See In re Hawver, 300 Kan. at 1039 (respondent's argument deemed abandoned or waived if respondent's brief advances no support of it). But even when we consider it, the overwhelming evidence supports the same conclusion the bankruptcy court reached. And the panel simply stated that it "agrees with the bankruptcy court" based upon the evidence and arguments provided by both parties. Regardless, the evidence in the record shows what Murphy attempted to do ran afoul of bankruptcy law. And Norton testified the second agreement "clearly violates" bankruptcy law, "probably constitutes a bankruptcy crime" and "is a sham agreement that . . . is an attempt to sell assets that . . . belong to . . . the trustee." Both Norton's and Murphy's testimony and the language in the first and second agreements, as well as the Tess Agreement, combine to provide clear and convincing evidence supporting the panel's conclusion that Murphy violated KRPC 8.4(d).

DISCIPLINE

Having found clear and convincing evidence that Murphy violated the Kansas Rules of Professional Conduct, all that remains is the task of imposing discipline. The violations are KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence), 1.2(c) (2003 Kan. Ct. R. 232 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

Annot. 332) (scope of representation), 1.7 (2003 Kan. Ct. R. An- not. 372) (conflict of interest), 2.1 (2019 Kan. S. Ct. R. 345) (independent judgment), and 8.4(d) (2019 Kan. S. Ct. R. 387) (conduct prejudicial to the administration of justice). The panel recommended Murphy's license be suspended for one year. In doing so, it relied upon State v. Callahan, 232 Kan. 136, 139-40, 652 P.2d 708 (1982). The panel found Callahan to be persuasive because of the factual similarities between the two cases. There, the court indefinitely suspended Callahan's license to practice law. Murphy argues the panel's recommendation is excessive, suggesting reprimand is the appropriate discipline. Alternatively, he asserts that if the court determines suspension is appropriate, the suspension should be stayed, and he be placed on probation. The Disciplinary Administrator's office stands by its recommendation of disbarment. Alternatively, if the court determines a suspension is the appropriate discipline, it recommends the suspension be indefinite, or if a suspension for a shorter term is considered, that Murphy be required to undergo a hearing for reinstatement under Supreme Court Rule 219 (2019 Kan. S. Ct. R. 270). The Disciplinary Administrator opposes probation noting Murphy failed to submit a probation plan to the hearing panel as required by Supreme Court Rule 211(g)(1) (2019 Kan. S. Ct. R. 259) ("If the Respondent intends to request that the Respondent be placed on probation for violating [KRPC] . . . , the Respondent shall provide each member of the Hearing panel and the Discipli- nary Administrator with a workable, substantial, and detailed plan of probation at least fourteen days prior to the hearing on the For- mal Complaint."). In his reply brief, Murphy appends a copy of "PROPOSED PROBATION AND SUPERVISION PLAN." But that fails to comply with Rule 211(g) procedures. We agree with the Disciplinary Administrator and the request for probation is rejected. The hearing panel's recommendations are advisory only and do not prevent us from imposing greater or lesser sanctions. Su- preme Court Rule 212(f) (2019 Kan. S. Ct. R. 261); In re Kline, 298 Kan. 96, 212-13, 311 P.3d 321 (2013). "Each disciplinary sanction is based on the specific facts and circumstances of the VOL. 312 SUPREME COURT OF KANSAS 233

In re Murphy violations and the aggravating and mitigating circumstances presented in the case." In re Mintz, 298 Kan. 897, 912, 317 P.3d 756 (2014). In arriving at its recommendation, the panel found Murphy "knowingly and intentionally violated his duties." Murphy argues there is "no evidence" to sustain the panel's finding, stating the evidence was "at worst" that "he made a poor judgment, and may have been negligent" in representing both A.M. and A.H.

"The ABA Standards identify three mental states: 'intent,' the highest culpable mental state; 'knowledge,' the intermediate culpable mental state; and 'negligence,' the least culpable mental state. Under the ABA Standards, a lawyer acts intentionally when acting with the 'conscious objective or purpose to accomplish a particular result,' while a lawyer acts with knowledge when acting 'with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.' Finally, a lawyer acts negligently when failing 'to be aware . . . that a result will follow . . . .'" In re Hawkins, 304 Kan. 97, 141, 373 P.3d 718 (2016).

But the record is replete with the evidence showing Murphy violated his duties owed to A.M. at least with knowledge. For instance, he knowingly violated KRPC 1.1 when he did not consult with a bankruptcy attorney before advising A.M. and A.H. Murphy knowingly violated KRPC 1.2(c) and 1.7 when he was aware of the then-existing conflicts, and he repeatedly did not provide adequate consultation before and after he learned of the bankruptcy matter. As to his violations of KRPC 2.1 and 8.4(d), the evidence strongly suggests he did so intentionally. As to KRPC 2.1, Murphy did not consider A.M. as an "independent client" and withheld advice and material information from A.M., to benefit the interests of A.H. and the third parties. He was acting with the conscious objective to accomplish the sale of the limousine business. Murphy intentionally did not advise A.M. there was another option, to walk away. Murphy admitted he "knew that any assets of the limousine business would be bankruptcy estate asset," but he nonetheless suggested the services agreement would not violate any bankruptcy law. He was acting to accomplish the transaction for the sale of A.H.'s limousine business. The panel determined that as a result of Murphy's misconduct, he caused "actual, serious injury": A.M. paid A.H. $300,420 for the business which A.H. did not own and which A.H. had previously valued at $0; and A.M.'s litigation to recover his loss lasted nearly 15 years. While Murphy initially took an exception to this finding, he later chose 234 SUPREME COURT OF KANSAS VOL. 312

In re Murphy

"not [to] dispute in any way that there was injury as a result of his conduct." See In re Hodge, 307 Kan. at 209-10. The panel also found seven aggravating factors: (1) Murphy had prior disciplinary offenses; (2) he was dishonest and had selfish motive; (3) he engaged in a pattern of misconduct; (4) he committed multiple rule violations; (5) he refused to acknowledge any wrongdoing; (6) A.M. was a vulnerable victim; and (7) he had substantial experience in the practice of law. As to the first factor, the panel found that while Murphy "had not yet been disciplined at the time the misconduct occurred in this case, [he] now has a history of prior disciplinary offenses." Murphy did not take an exception to the factual finding that he had a history of previous disciplinary offenses, rather he claims those cases cannot be "prior" disciplinary because they occurred after the present case. In doing so, he offers no authority. But we have no difficulty including his disciplinary record as part of our consideration. See In re Kenny, 289 Kan. 851, 854, 856, 217 P.3d 36 (2009) (adopting the panel's finding of the prior-disciplinary-offenses factor when respondent's prior "case was dismissed"). With regard to the second factor, the panel determined Murphy "falsely characterized his role as a mere scrivener. Characterizing his role in this fashion was dishonest. . . . Likewise, characterizing his role as a mere scrivener was also selfish." Murphy counters that he believed his role as such "in good faith," and both clients consented to his limited representation. He also argues the panel is punishing him for advocat- ing his position; but clear and convincing evidence supports the panel's finding and his argument has no merit. For the third factor, the panel concluded Murphy engaged in a pattern of misconduct because he repeatedly and falsely insisted he was a mere scrivener. He contends his good-faith belief should not be considered as a pattern of misconduct. He argues that "[i]f he had a pattern of failing to communicate with his clients over the years, that would be a pattern of misconduct," but his repeated assertions before the panel should not be. But this factor has been understood by this court to have broader meaning. See, e.g., In re Holmes, 307 Kan. 871, 888, 416 P.3d 143 (2018) (upholding the panel's finding of the pattern-of-misconduct factor when "respondent repeatedly provided false and misleading information to VOL. 312 SUPREME COURT OF KANSAS 235

In re Murphy the disciplinary administrator's office regarding his knowledge of the suspension and the extent of his unauthorized practice of law"); In re Nwakanma, 306 Kan. 704, 754, 397 P.3d 403 (2017) ("'The respondent engaged in repeated dishonest conduct—in his practice and before the hearing panel.'"). As to the fourth, fifth, and seventh factors, clear and convincing evidence supports the panel's findings. See In re Kenny, 289 Kan. at 854 (practicing law for 10 years supports a finding of the substantial experience factor). But, for the sixth factor, the panel's determination that A.M. was vulnerable to Murphy since he was not an attorney "alone is not sufficient for a vulnerability finding." In re Hodge, 307 Kan. at 234 ("This court previously has ruled a victim's inexperience with legal matters alone is not sufficient for a vulnerability finding."). The panel found four mitigating circumstances: (1) Murphy fully cooperated with the disciplinary process although he did not acknowledge his misconduct; (2) he "possesses a good character and reputation as evidenced by several letters received by the hearing panel"; (3) he settled the dispute with the bankruptcy trustee; and (4) he showed remorse. We hold clear and convincing evidence supports these four mitigating factors. But the panel concluded the delay in bringing the disciplinary proceeding was not a mitigating factor. This is contrary to our caselaw. A.M. filed the complaint in 2016, which was 12 years after Murphy's misconduct occurred. And the delay factor covers instances in which "charges may become so stale that it would be inequitable to act upon them." In re Ratner, 194 Kan. 362, 373, 399 P.2d 865 (1965) (six years of delay) (citing In re Elliott, 73 Kan. 151, 158, 84 P. 750 [1906] [taking 14 years to file charges "must at least be said that it is very stale"]). In In re Carson, 252 Kan. 399, 410, 845 P.2d 47 (1993), the court held that to assert the delay as a defense, "there must be a showing of prejudice to the party asserting such delay as a defense." In his statement of exceptions, Murphy claims "[i]t is entirely reasonable for respondent not to remember every detail of the subject matter which took place 15 years in the past, and the contradiction stated by the panel is simply a reflection of the best 236 SUPREME COURT OF KANSAS VOL. 312

In re Murphy recollection of respondent." While this statement was not provided before the panel, more than 10 years of the delay is an undisputed fact. That amount of delay can be considered prejudicial. See 252 Kan. at 410 ("The evidence presented in Carson I was not stale. The factual basis for the disciplinary proceeding was preserved when the memory of the witnesses was still fresh."). But in this case we hold any prejudice is not so overwhelming that it outweighs the aggravating factors.

Murphy's misconduct merits suspension

We conclude a suspension with a two-year term is the appropriate discipline. In arriving at this, we have considered the aggravating and mitigating circumstances described above, as well as the clear and convincing evidence that supports the panel's findings and conclusions. Attorneys who attempt dual representation of parties to a business transaction do so knowing they are entering an ethical minefield. And while it is possible with diligence to avoid a disastrous slip, this case is a textbook example of what not to do. That said, the court is amenable to staying respondent's two- year suspension after the first year so long as he adheres to a probation plan approved by the Disciplinary Administrator's office during the second year of his suspension.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Mark D. Murphy be and he is hereby suspended from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240) for two years as of the date of the opinion.

IT IS FURTHER ORDERED that the above suspension will be stayed after the first year provided respondent enters into a probation plan approved by the Disciplinary Administrator's office that is applicable for the second year of suspension. Approval of a probation plan by that office is required before the stay of respondent's suspension can commence. The provisions of Kansas Su- preme Court Rule 211(g) (2019 Kan. S. Ct. R. 257) (discharge from probation) apply.

VOL. 312 SUPREME COURT OF KANSAS 237

In re Murphy

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268) (notice to clients, opposing counsel, and courts of record following suspension).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 122,036 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Carol A. Beier.

238 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson

No. 117,131

STATE OF KANSAS, Appellee, v. CECIL MEGGERSON, Appellant.

474 P.3d 761

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Issues Waived if Not Briefed. Issues not properly briefed are waived or abandoned.

2. SAME—Burden on Litigant to Designate Sufficient Record. A litigant who alleges error bears the burden of designating a sufficient record on appeal to show error.

3. TRIAL—Evidence—Trained Person Qualified to Lay Foundation Testi- mony. A person trained in the use and maintenance of a jail telephone system and its records is qualified to lay sufficient foundation testimony for that system.

4. SAME—Admission of Prior Crimes Evidence—Appellate Review. If a district court properly admitted evidence under one enumerated exception listed in K.S.A. 2019 Supp. 60-455(b), appellate courts need not address the efficacy of another enumerated exception.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opin- ion filed October 23, 2020. Affirmed.

Jeffrey C. Leiker, of Leiker Law Office P.A., of Kansas City, argued the cause and was on the brief for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: After a string of violent robberies in Kansas City, Missouri, and Kansas City, Kansas, Cecil Meggerson and Dyron King were jointly tried. The jury convicted Meggerson of attempted capital murder of Deputy Scott Wood, aggravated robbery of Patricia Pope, aggravated robbery of Deputy Scott Wood, aggravated robbery of Daniel Bayer, aggravated battery of Deputy Scott Wood, aggravated battery of Daniel Bayer, conspiracy to commit aggravated robbery, criminal possession of a weapon by a convicted felon on March 3, 2015, and criminal possession of a weapon by a convicted felon on March 4, 2015. The jury acquitted VOL. 312 SUPREME COURT OF KANSAS 239

State v. Meggerson

Meggerson on charges of aggravated robbery of Reginald Jones. The district court imposed a hard 25 sentence and a consecutive term of 449 months with the Department of Corrections. Megger- son directly appealed.

FACTS AND PROCEDURAL BACKGROUND

We previously decided King's appeal in State v. King, 308 Kan. 16, 417 P.3d 1073 (2018). In that decision, we described the key events as follows:

"Don's Market and Liquors robbery

"The store's surveillance cameras showed the man with the white mask was also wearing black and white batting gloves and gray 'boot style' shoes. Another robber was carrying a 'MAC-11 style' semiautomatic gun with an extended magazine. This suspect wore a mask and Nike shoes with a distinctive yellow or white toe pattern. The third robber was wearing all black and carrying a revolver with a wood handle. Surveillance video from a nearby business showed the three suspects exit the store and get in a black four-door sedan with no front license plate.

"Family Dollar robbery

"Around 8:45 p.m. on March 3, 2015, Patricia Pope was working as a cashier at the Family Dollar located at 1225 Quindaro, Kansas City, Kansas. Reginald Jones was a customer in the store at the time. Pope was restocking the shelves when she noticed Jones make his way to the front register to pay for his items. As she walked to the front to help Jones, a taller man with a handgun came through the front door wearing black clothing, a mask, and gloves. The suspect approached Jones and pointed the gun at him. While this was occurring, two other individuals who were wearing dark clothing entered the store.

"The taller suspect spoke to Jones, but Pope could not make out what was said. He then struck Jones in the forehead with the handgun, and Jones fell to the ground, bleeding heavily. While on the ground, Jones was told to give up his 240 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson keys and billfold. Jones tossed them his keys and said to take his car. But the robbers eventually left the store without taking the keys.

"After striking Jones, the taller suspect grabbed Pope and pushed her toward the counter. Once behind the counter, the man used a tool to pry open the cash register. He emptied the contents of the drawer into a store trash can and then repeated the same process at another cash register.

"Pope noticed the taller suspect had on blue 'workman's boots or workman's shoes.' Pope told a responding officer she could tell all three suspects were black males, but she later testified at trial that she could not discern their race. The store's surveillance video revealed one of the men was wearing a hoodie with a large gold eagle on the back. Another suspect wore black and white gloves and had a MAC-style semiautomatic handgun with an extended magazine. All three suspects had a firearm, one of which was a revolver with a wood handle. In addition to the surveillance video, investigators recovered two shell casings and a bullet from the store.

"Shamrock robbery

"Shortly after 10 p.m. on March 3, 2015, three armed men dressed in black robbed a Shamrock gas station at 8505 Woodland Avenue in Kansas City, Mis- souri. Brenden Foxworthy and Dustin Paquet were working the evening shift. Both Foxworthy and Paquet described one of the robbers as taller than the others. The taller robber, who was wearing a black mask covering his entire face, ordered Foxworthy to open the registers and safe. Foxworthy opened the registers, but when he was unable to open the safe, he was struck several times on top of his head with a gun. Foxworthy fell to the ground where he remained until the suspects left.

"Paquet observed one of the suspects was carrying a handgun with an extended magazine. All three robbers concealed their faces with either a mask, scarf, or hoodie. At some point before Foxworthy was struck, a shot was fired. After the suspects had left the store, Foxworthy heard shots being fired in the parking lot.

"Surveillance footage showed the tallest robber was wearing all black clothing and wielding a semiautomatic handgun with an extended magazine. He was wearing black and white batting gloves and a gray boot style shoe. The second suspect was dressed in all black and wore a mask with a University of Missouri Tiger's logo. He had on two-tone gray gloves and was carrying a revolver with a wood handle. The last suspect wore a black hoodie with a distinctive gold eagle VOL. 312 SUPREME COURT OF KANSAS 241

State v. Meggerson design on the back and a pair of gloves with a faded yellow logo. He also wore Nike shoes with a unique yellow and white toe pattern.

"Foxworthy and Paquet told officers that the suspects took money and bottles of Patron. Video surveillance showed the robbers also took bottles of Rémy Martin, 1800 Tequila, and other bottles of tequila. Officers recovered several bullet shell casings from the parking lot.

"Kicks 66 robbery

"Around 12:45 a.m. on March 4, 2015, three masked men robbed a Kicks 66 gas station at the corner of 79th Street and Wornall Road in Kansas City, Missouri. Dannella Villa, the general manager, was training Derrick Brining that night. Villa saw three armed men dressed in dark clothing with their faces covered run through the front door. All three men were armed with handguns. Villa noticed one of the men had a mask with some sort of design. She described the height of the robbers as 'one tall, one medium, and one short.'

"When they entered the store, Villa and Brining dropped to the ground, and Villa pressed the store's panic button. The tallest suspect and the medium-height suspect approached Villa and demanded money. One of the men came around the counter, and the other jumped over while firing gunshots. After opening one of the cash registers, Villa tried to open another but struggled to do so. The medium-height suspect used his pistol to hit her twice on the top of her head and once on her face. While striking Villa, he said, 'I'm gonna kill you, bitch.' Villa fell to the ground, acting as though she was unconscious.

"While they were behind the counter, the robbers tried to intimidate Villa and Brining by firing several shots near them. The robbers also tried to get Brin- ing to open the safe, but because it was his first night on the job, he did not know how. Brining was struck several times with the butt of a gun. The robbers fired gunshots at the safe, trying to open it, and one of the bullets ricocheted off of the safe and struck Brining in the knuckle. They eventually abandoned their attempt to shoot open the safe, opting to ransack the store before leaving with the money from the registers.

"Villa saw enough of the tall and medium robbers' skin to discern they were black. The store's video surveillance cameras showed one of the robbers wore a distinctive gray boot style shoe and was wearing black and white Easton batting gloves. Another robber was carrying a revolver with a wood handle, had on two- toned black and gray gloves, and was wearing a mask with a University of Mis- souri logo. The third robber was wearing a jacket with a gold eagle emblem on the back.

"While entering the store, one of the suspects used a section of picket fence to prop open the door. Officers later discovered the section of fence was taken from a privacy fence located behind the gas station. While examining the fence behind the store, officers discovered a pack of Newport cigarettes and a knotted 242 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson section of black t-shirt. Officers also recovered numerous bullet fragments and empty shell casings from the gas station.

"7-Eleven robbery

"The final robbery occurred at the 7-Eleven convenience store located at 4331 Shawnee Drive in Kansas City, Kansas. In the early morning hours of March 4, 2015, Dan Bayer was the only person working the overnight shift. Around 1 a.m., Officer Scott Wood with the Wyandotte County Sheriff's Office came into the store. Officer Wood had just finished his work shift and stopped at the gas station on his way home. He was still in uniform and wearing his gun. After selecting some items, Officer Wood went to the checkout counter, where he struck up a conversation with Bayer.

"The robbery began as the two were leaning on the counter and talking— Bayer facing the front door and Officer Wood facing away from the door. Three armed men dressed in black and wearing masks entered the store. They held their guns in the air, announced it was a robbery, and ordered Officer Wood to lie down on the ground. Bayer observed one of assailants was 'noticeably taller' than the others. Before Officer Wood went to the ground, he was able to catch a glimpse of the men. He also described one of the men as 'a bit stockier than the other two and a little bit taller.'

"One of the men came over the counter, grabbed Bayer's arm, and hit him in the head. Another suspect came around the counter while the other positioned himself over Officer Wood. The men ordered Bayer to open the cash register, and after he had done so, they had Bayer place the money in a bag. Bayer was then ordered to hand over his wallet, but when the suspects discovered there was no money in it, they returned it to Bayer. Bayer was then ordered to withdraw money from the store's safe. Bayer withdrew $60 and gave it to them. Two of the suspects wrestled the drawer out of the second register.

"As two of the robbers dealt with Bayer, Officer Wood was lying on his stomach with his hands spread out in front of him. The third suspect held a knee to his back and told him that if he moved or tried anything, they would shoot and kill him. The man patted him down. Officer Wood tried to conceal his gun with his jacket, but to no avail; the suspect discovered the gun and tried to wrestle it from the holster. Unable to free the gun, the robber became frustrated and hit Officer Wood in the back of his head with an object, causing Officer Wood to bleed. The holster strap eventually broke, and the suspect removed the gun. He also took Officer Wood's knife and wallet, which contained cash.

"At this point, multiple gunshots were fired. Bayer could not tell which suspect fired the shots. Officer Wood later testified he could tell based on his training that a revolver and a semiautomatic handgun were being fired at the same time. Officer Wood first felt a pain in his jaw, and his mouth began to fill up with blood. He then felt pain in his right shoulder, left chest, and left abdomen.

VOL. 312 SUPREME COURT OF KANSAS 243

State v. Meggerson

"Once the suspects fled the store, Officer Wood—who had remained conscious—radioed dispatch to report that he had been shot. Shortly thereafter, he lost consciousness. The treating trauma surgeon later testified that Officer Wood suffered gunshot wounds to his jaw, left and right shoulders, left chest, and right side of his neck. Officer Wood survived and testified at trial. His gun was later recovered in Clay County, Missouri.

"The store's video surveillance revealed the shooter used a revolver with a wood handle. One of the robbers wore black and white Easton batting gloves; another wore dark gloves with a gold band; and the last suspect had on two-toned gloves. One robber wore gray boot style shoes.

"Investigation

"The initial lead came from Kansas City, Missouri, police officers who were able to lift a fingerprint from the pack of Newport cigarettes recovered from behind the Kicks 66. The print belonged to a young black male, Dyron King. Also located on the box of cigarettes was a State of Kansas tax stamp that was affixed by a distribution company. A detective working with the distribution company was able to determine from a code on the stamp that the box was distributed to a group of vendors in the Kansas City, Kansas, area, which included the Family Dollar located at 1225 Quindaro.

"Shortly after discovering the fingerprint, an investigator obtained the GPS location of King's cell phone. That evening, Kansas City, Kansas, and Kansas City, Missouri, officers—as well as various tactical response teams—arrived at 838 North 83rd Terrace in Kansas City, Kansas. When they knocked on the front door, King's mother answered, and one of the officers saw King in the front room of the home. Shortly thereafter, officers discovered two other young black males—Charles Bowser and Cecil Meggerson—in the home. All three were arrested.

"Officers obtained a search warrant for the home. In King's downstairs bedroom, officers located three handguns, including a .357 magnum revolver on the bed. The revolver had a wood handle with a gold emblem. Behind a ceiling tile, officers found a bag containing a large amount of cash resting next to a MAC- style gun with an extended magazine. Resting on the floor were empty coin wrap- pers; a pair of blue and gray Nike boot style shoes, one with a drop of blood on it; an 'improvised mask' that looked to be made from the sleeve of a t-shirt with a University of Missouri logo on it; and various liquor bottles, including Patron and Rémy Martin. A black hoodie, black pants, and a black jacket were also recovered from the bedroom.

"Also in King's bedroom were the keys to a black Lincoln sedan that was parked in front of the house. Officers later learned the car belonged to Bowser. Inside the vehicle, officers recovered a pair of black and white Easton batting gloves; a pair of black gloves with a yellow stripe; a pair of two-toned gloves; a pair of black gloves; a bottle of Rémy Martin; a box of .357 bullets; and another 'impromptu mask' that appeared to be made from a t-shirt. 244 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson

"Officers obtained a warrant to search Bowser's residence in Kansas City, Missouri. There they found a bottle of Patron in a dresser that also contained mail addressed to Bowser. Officers also located a coin wrapper behind a couch and a shirt matching the description of a shirt worn in the robbery of Don's Market and Liquors.

"When officers booked Meggerson into jail, they took into evidence the clothing he was wearing, which included a pair of black Nike Air Max shoes. They also collected Meggerson's Nokia cellphone, which contained four photographs of Meggerson holding a bottle of Patron and a bottle of 1800 Tequila. The timestamps on the photos indicated they were taken at 11:50 p.m. on March 3, 2015.

"Meggerson's cell phone contained text messages between him and 'Dyron.' One of the messages stated, 'I need them 357,' which was sent on March 4. A detective testified that he believed '357' referred to the .357 magnum revolver that was recovered from King's bedroom. Another text message from Dyron on February 28 stated, 'Don't take it yet. We about to get money. Then we take it when we get a good L.' The phone's call log indicated Dyron called Meggerson's phone three times on March 3, 2015.

"In addition to Meggerson's phone, officers collected an LG cell phone from the living room floor at 838 North 83rd Terrace, and yet another cell phone was collected, though the record is unclear where it was found. An FBI special agent was able to determine one of the phones connected to the cellphone tower nearest the Family Dollar at 8:39 p.m. on March 3, 2015. The Family Dollar robbery occurred around 8:45 p.m. that day. The same agent also determined Megger- son's phone connected to the two cell phone towers nearest the Shamrock 10 times between 9:53 p.m. and 9:59 p.m. The Shamrock robbery occurred shortly after 10 p.m.

"After listening to jailhouse phone calls made by Meggerson, officers obtained a warrant to search his girlfriend's apartment. There they found a shoebox containing a wallet with Meggerson's identification. Also in the shoebox were several items such as earrings, necklaces, and sunglasses with the price tags still attached.

"During the course of the investigation, detectives obtained a DNA search warrant for all three suspects. DNA analysis from blood found on two spots from inside and outside the black and white Easton batting gloves revealed a mixture of a major and minor contributors. King was found to be the major contributor to both. Among three contributors to the DNA found inside the black and gray gloves found in the sedan, Meggerson's DNA was determined to be the major contributor. Of the four contributors to the DNA found in the black and yellow gloves, Bowser was the major contributor. Bowser was found to be the major contributor to three stains found on the University of Missouri mask. And Bow- ser was the major DNA contributor to the knotted fabric found behind the Kicks 66 gas station. King was found to be the major contributor of DNA located inside VOL. 312 SUPREME COURT OF KANSAS 245

State v. Meggerson the blue and gray Nike boot style shoe. The blood found on the exterior of the shoe belonged to Foxworthy.

"Swabbings from the revolver found in King's room revealed blood in one of the cylinder pin housings. The major DNA profile matched that of Officer Wood's to the probability of 1 in 520 octillion individuals. A firearms examiner compared shell casings recovered from the 7-Eleven, Family Dollar, and Sham- rock robberies and was able to determine they were all fired from the same gun.

"Investigators recovered footprints from the Kicks 66 gas station which were left behind on a 5-hour Energy box and a folded piece of paper. A forensic specialist determined the impression on the 5-hour Energy box could have been made by the blue and gray Nike boot style shoe recovered from King's bedroom. The same specialist deduced the black Nike Air Max shoes recovered from Meg- gerson could have made the impression on the folded piece of paper.

"While King was incarcerated at the Wyandotte County jail awaiting trial, he made statements to two different detention officers. On one occasion, a detention officer told King he could not leave his cell during a health and welfare check because the facility was on lockdown. King became agitated and started yelling at the officer, calling him a liar. When the detention officer told King there was nothing he could do about it, the officer walked to another cell. The officer testified he could still hear King tell another inmate, 'I know that bitch is just lying to try and mess with me and he's pissed off that I shot one of his buddies and now he wants to get his.'

"Officer Jonathan Cortes testified about the second statement, which allegedly occurred over an intercom system used by officers and inmates to communicate with each other. King demanded access to a phone so he could speak with a sergeant. According to Officer Cortes, when he denied the requests, King yelled over the intercom that 'he gets the phone and the sergeant . . . whenever he want[s] to because he shot a policeman and that [the officers] fear[ ] him.' Officer Cortes claimed over the next two hours, King repeated multiple times that the officer was just mad because King 'shot [his] boy.' Officer Cortes also testified King said 'he was gonna beat [his] ass and shoot [him].'

"Procedural posture

"The State charged King, Meggerson, and Bowser with attempted capital murder of Officer Wood, aggravated robbery of Patricia Pope (Family Dollar cashier); aggravated robbery of Reginald Jones (Family Dollar customer); aggravated robbery of Dan Bayer (7-Eleven clerk); aggravated robbery of Officer Wood; aggravated battery of Officer Wood; aggravated battery of Dan Bayer; conspiracy to commit aggravated robbery; and two counts of criminal possession of a firearm. King was also charged with criminal threat toward Officer Cortes.

"On December 9, 2015, King and Meggerson filed a joint motion to sever their trial from Bowser's. The motion stated the attorneys for King and Megger- son had received statements from two individuals who were incarcerated with 246 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson

Bowser. The statements allegedly indicated Bowser confessed to these individuals and explained in detail how the crimes were committed. However, before the court could consider the motion, Bowser received new counsel on January 8, 2016. At the pretrial motions hearing on January 15, 2016, Bowser's new counsel asked the court for a 'continuance,' explaining that he had been assigned to the case one week earlier and noting the large amount of discovery he had to review. The State did not object, and the court granted the request, telling Bowser's attorney that they would have to set a new hearing and trial date. Neither King nor Meggerson moved to sever their joint trial.

"Ten days later, the court began a two-week jury trial of both King and Meggerson. The State called 74 witnesses and offered over 600 exhibits. The surveillance videos of each robbery were entered into evidence and viewed by the jury. Neither defendant presented evidence. The jury found King guilty as charged except for the aggravated robbery of Jones and the criminal threat to Officer Cortes. The jury also found Meggerson guilty as charged except for the aggravated robbery of Jones." 308 Kan. at 17-27.

DISCUSSION

The State presented sufficient evidence to convict Meggerson.

Meggerson first claims his convictions are not supported by sufficient evidence. Meggerson titles this argument this way: "There is insufficient evidence to support Mr. Meggerson's felony convictions, specifically for the felonies of Attempted Capital Murder, three counts of Robbery, two counts of Aggravated Bat- tery, conspiracy to commit Aggravated Robbery, and two counts of Criminal Possession of a Firearm." The body of the argument, however, only discusses the attempted capital murder conviction. Issues not briefed or not adequately briefed are deemed waived or abandoned. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019); State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). A point raised incidentally in a brief but not argued is also deemed abandoned. State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018). Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Salary, 309 Kan. at 481. We hold that Meggerson has waived each sufficiency claim, save for the claim related to his attempted capital murder conviction. Attacking his attempted capital murder conviction, Meggerson argues no direct evidence implicated him because the police followed a VOL. 312 SUPREME COURT OF KANSAS 247

State v. Meggerson cigarette pack with King's fingerprint. Meggerson claims he and King are cousins, so his presence at King's home was pure coincidence. Meggerson points to Officer Dion Dundovich, who Meggerson claims testified "Meggerson was arrested with King and Bowser simply because he was the third black man in the house, and for no other reason." He continues that the search of King's home yielded evidence implicating King and Bowser, but nothing implicating Meggerson. He adds that the search of his girlfriend's apartment likewise did not provide incriminating evidence. Further, Meggerson argues the State failed to prove premeditation, and without evidence of premeditation, insufficient evidence existed for the jury to convict Meggerson of the offense of attempted capital murder. When a defendant attacks the sufficiency of the evidence used to convict him or her, we must ask "'whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.'" State v. Chan- dler, 307 Kan. 657, 668, 414 P.3d 713 (2018). We are not to "'reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" 307 Kan. at 668. This is a high burden, and only when the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a guilty verdict. State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018); State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983). The record is replete with direct and circumstantial evidence implicating Meggerson in the 7-Eleven robbery. Further, the State properly used witness testimony about the other robberies to show plan and identity for Meggerson, King, and Bowser. Each robbery was committed in substantially the same manner. Cell phone data established Meggerson's cell phone was at the regional cell phone tower nearest the Shamrock gas station nine times during the course of that robbery. Meggerson, King, and Bowser texted and called each other during the robberies. Meg- gerson texted King and requested a ".357"—the same caliber as the revolver recovered from King's home and as the one used to shoot Deputy Wood. Further, Meggerson texted "[w]e about to get money." Meggerson's DNA matched DNA recovered from the 248 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson

Hyflex brand glove recovered from Bowser's Lincoln LS found in King's driveway. The Kicks 66 and 7-Eleven video surveillance footage depicted an individual wearing Hyflex brand gloves. Sim- ilarly, Meggerson wore Nike Air Max shoes when police arrested him. In the Kicks 66 and 7-Eleven surveillance videos, the individual wearing Hyflex gloves also wore Nike Air Max shoes. The treads of the Nike Air Max shoes found at the Kicks 66 and 7- Eleven locations were consistent with one another. At trial, the jury was instructed on accomplice liability. Jury Instruction No. 94 instructed the jury that "[a] person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit the crime." The record implicated the three as codefendants—police recovered black and white Easton brand batting gloves, visible on surveillance video at each robbery location, from Bowser's Lincoln LS and King's was the major contributing DNA profile on that pair of gloves. Additionally, a black sedan consistent with Bowser's black Lincoln LS is visible on the Don's Market and Liquors surveillance video. Police found a cloth face mask containing Bowser's DNA in the Lincoln. This face mask is visible in several robbery videos and is identifiable by a logo on the cloth. The face mask was located near the Easton and Hyflex brand gloves. The chamber of the revolver recovered from King's bedroom contained Deputy Wood's blood. This revolver was a .357—the same caliber discussed by Meggerson over text messages and the same caliber as the gun used to shoot Deputy Wood. King's DNA was inside a pair of gray Nike boots that contained a Shamrock station employee's blood. Similar boots can be seen on multiple surveillance videos. A knotted shirt used as a face mask was discovered outside the Kicks 66 location and contained Bowser's DNA. Police found a Newport cigarette package nearby. The cigarettes were consistent with the cigarettes sold at and taken from the Family Dollar store. Meggerson instructed his girlfriend, Ashley Carvin, to sell or dispose of the "packs" in a jail phone call. VOL. 312 SUPREME COURT OF KANSAS 249

State v. Meggerson

We are thoroughly convinced the record contains sufficient evidence such that a reasonable juror would conclude that Meg- gerson committed attempted capital murder based on the substantial body of evidence presented at trial. There was no error.

Meggerson failed to designate a sufficient record to support his claim of error concerning his cell phone.

Next, Meggerson asserts the district court erred when it admitted the contents of his cell phone. He explains that a "piggy- back" warrant was used by a Clay County, Missouri crime lab for his phone recovered in Wyandotte County, Kansas. Meggerson notes that a probable cause affidavit was provided to a Missouri judge for the phone search warrant, but the information in the affidavit went only to the search of King's home and vehicle. More or less, Meggerson claims the Missouri search warrant was deficient and a "virtual rubber-stamp." Meggerson concludes the phone's contents were highly prejudicial, containing photographs of Meggerson holding liquor bottles similar to those taken from several of the robberies. Before trial, Meggerson moved to quash the search warrant for King's residence and to suppress any obtained evidence. The warrant application included four recovered cell phones. Megger- son received a hearing and argued the original Missouri warrant did not provide probable cause to search the phone. He claimed Detective David Foster contradicted himself—that Foster originally testified he forgot to include a probable cause statement, but later testified he provided the proper probable cause statements with the affidavit. The district court stated that all the correct information was included and denied Meggerson's motion. On appeal, however, Meggerson failed to include in the record on appeal the allegedly defective warrant, its underlying affidavits or probable cause statements, or any relevant materials. Megger- son, as the party claiming error, has the burden to designate a record affirmatively showing prejudicial error. Without such a record, we must presume the actions of the district court were proper. State v. Simmons, 307 Kan. 38, 43, 405 P.3d 1190 (2017); see also State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The burden is on the party making a claim of error to designate facts 250 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson in the record to support that claim; without such a record, the claim of error fails."). Because Meggerson failed to fulfill his burden to provide the documents necessary for our consideration, his claim fails.

The district court properly admitted Meggerson's jail phone calls.

Meggerson next complains the district court erred when it admitted his Wyandotte County jail phone calls—specifically the admission of his statement to Carvin: ". . . hey, do you remember what I have Caprice (ph)? You know, those—the two packs, get rid of them. You know them things I like, get rid of them or get a discount on them. Get some money off of them." Meggerson admits the "packs" reference cigarettes and claims the statement implied to the jury he destroyed evidence. Meggerson complains the State did not actually play the phone calls to the jury, but detectives who listened to them described the calls. He asserts this was an end-run around the appropriate process for the admission of audio file evidence. Meggerson argues this prejudiced his case because the State used this phone call in closing argument to suggest Carvin moved or destroyed evidence at Meggerson's request, which is why a search of Meggerson's apartment yielded little evidence. At trial, Detective Troy Rice testified the jail Pay-Tel phone system indicated the number Meggerson dialed belonged to Meg- gerson's girlfriend, Carvin. Meggerson objected, claiming Rice was not the records custodian for the phone system, so his testimony was hearsay. Meggerson argued the State needed a records custodian to lay foundation for the Pay-Tel phone system. The district court disagreed and permitted the State to question Detec- tive Rice if he heard the conversation and what Rice did next based on that information without getting into the conversation's contents. Meggerson essentially makes two claims: (1) Carvin was not properly identified on the call; and (2) the Pay-Tel jail phone server was maintained elsewhere and required the testimony of a records custodian to lay sufficient foundation. We will address each. VOL. 312 SUPREME COURT OF KANSAS 251

State v. Meggerson

Meggerson first claims the State failed to sufficiently identify Carvin on the phone calls. We conclude otherwise. Detective Rice testified the Pay-Tel system identified the number Meggerson called as Carvin's. He testified "the phone number on record with the Wyandotte County's Pay-Tel phone system to that number, was an Ashley Carvin." When pressed further, Detective Rice explained if a "phone number has been registered before in the system, there is some data fields, which fills in not only the phone number, but the name and address of the person to that phone number from prior records." Later, the record custodian for the phone system, Detective Sherry Anderson-Simpson, testified that Carvin's information was previously entered into the Pay-Tel system. She stated that she listened to "a phone call that was made on March 5th at about 14:48 hours . . . to Ashl[e]y Carvin from Cecil Meggerson." In light of this testimony, we are satisfied the evidence was sufficient to con- nect Carvin to the call. Meggerson's second argument asserts Detective Anderson- Simpson was not the proper records custodian. While we have not directly addressed this question, the Court of Appeals has consistently permitted police detectives, captains, or other police personnel to provide foundation for their jail phone systems. In State v. Ross, No. 118,199, 2019 WL 847672, at *7 (Kan. App. 2019) (unpublished opinion), the Court of Appeals permitted the jail support commander to testify as a rebuttal witness and "explain[] the process for searching the phone system for a specific inmate's phone calls." Many other examples exist. See State v. Leaper, 40 Kan. App. 2d 902, 910, 196 P.3d 949 (2009), aff'd 291 Kan. 89, 238 P3d 266 (2010); State v. Andrews, 39 Kan. App. 2d 19, 20-21, 176 P.3d 245 (2008); State v. Kurtenbach, No. 119,845, 2019 WL 490519, at *1 (Kan. App. 2019) (unpublished opinion); State v. Loewen, No. 102,577, 2010 WL 1078477, at *1 (Kan. App. 2010) (unpublished opinion);. We agree with the Court of Appeals and hold under these facts, Detective Anderson-Simpson properly laid foundation for the jail phone call. The record shows Detective Anderson-Simp- son was a Wyandotte County Sheriff's Office employee during Meggerson's incarceration. She detailed the jail used a "web based 252 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson system with a secure user name and password" and described the process an inmate uses to place or receive a phone call, including a "unique pin number" assigned to each inmate. Detective Ander- son-Simpson also testified that she acted as the Pay-Tel phone system custodian, ensured the system functioned properly, checked phone calls for abuse, and reported misuse of the system. Further, Detective Anderson-Simpson noted that Pay-Tel provided training to her and other staff on the system's operation. She learned "how to use the system, how to block numbers from the system, how to make certain phone numbers not recorded, and basically . . . how we could find when inmates are using other pin numbers to make phone calls." Detective Anderson-Simpson described hers as a "very thorough training." We are convinced Detective Anderson-Simpson laid a proper foundation for the Pay-Tel phone record.

The district court properly admitted K.S.A. 2019 Supp. 60-455 prior crimes evidence.

Meggerson next takes issue with K.S.A. 2019 Supp. 60-455 evidence admitted at trial. He explains the State admitted prior bad acts evidence about the other uncharged robberies to prove plan and identity but complains the evidence was not relevant for those purposes. What is more, Meggerson argues the State used the other robbery evidence for the sole purpose of showing propensity and highlights that this evidence consisted of more than half of the State's case and thus the probative value did not outweigh its prejudicial effect. Meggerson admits the "identity of the perpetrator and plan were both material and in dispute." As such, we must decide first whether the evidence of these other robberies was relevant to prove the material facts of identity and plan, and second, whether the probative value of the evidence outweighed any prejudicial effect. State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018). All relevant evidence is admissible unless prohibited by statute, constitutional provision, or judicial decision. See K.S.A. 60- 407(f); Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d 647 (2019). When reviewing prior crimes evidence admitted un- VOL. 312 SUPREME COURT OF KANSAS 253

State v. Meggerson der K.S.A. 2019 Supp. 60-455, we review a district court's relevance determination under a bifurcated standard of review. Rele- vance has two elements: materiality and probativeness. See Mil- ler, 308 Kan. at 1167. Evidence is material when the fact it supports is in dispute or in issue in the case, and materiality is reviewed de novo. 308 Kan. at 1166-67. Evidence is probative if it has any tendency to prove any material fact, which we review for an abuse of discretion. 308 Kan. at 1166-67. But a district court may exclude relevant evidence it when its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 2019 Supp. 60-455. We review the lower court's balancing of probative value against prejudicial effect for an abuse of discretion. Haygood, 308 Kan. at 1392-93. A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). When prior crime evidence is provided under K.S.A. 2019 Supp. 60-455, the district court must provide a limiting instruction. Haygood, 308 Kan. at 1392-93. While K.S.A. 2019 Supp. 60-455(a) prevents the use of propensity evidence in a criminal trial such as this one, it permits introduction of evidence of prior acts if it is being used for a legitimate, non-propensity reason:

"[S]uch evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." (Emphases added.) K.S.A. 2019 Supp. 60- 455(b).

Of note, the jury received the correct limiting instruction and Meggerson does not challenge the jury instruction, only the admission of the evidence. The limiting Jury Instruction No. 97 informed the jury: "Evidence has been admitted tending to prove that the defendant Cecil Meggerson committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant's motive, intent, plan, and identity." K.S.A. 60-401(a)-(b) defines evidence and relevant evidence. "Evidence" is defined as "the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact- 254 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson finding tribunals" and "relevant evidence" is any "evidence having any tendency in reason to prove any material fact." (Emphasis added.) We previously discussed relevant evidence in a similar case. In State v. Wilson, 295 Kan. 605, 614-20, 289 P.3d 1082 (2012), we held seven uncharged burglaries from Kansas and Nebraska were relevant to prove identity and plan. Like Meggerson, Wilson agreed identity and plan were both material and in dispute but claimed "the uncharged burglaries were irrelevant to prove those disputed material facts." 295 Kan. at 616. There, we asked whether "the evidence was . . . probative of the disputed material facts and" therefore relevant. 295 Kan. at 618. We explained when K.S.A. 2019 Supp. 60-455 evidence is used to prove identity, "'the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses.'" 295 Kan. at 618 (quoting State v. Hig- genbotham, 271 Kan. 582, Syl. ¶ 3, 23 P.3d 874 [2001]). Then, we noted the commonalities between several burglaries, including (1) rural locations; (2) isolated houses with no near or adjacent neighbors; (3) each home was near a highway; (4) the area was limited to north-central Kansas and south-central Ne- braska; (5) each home was unoccupied at the time of the burglaries; (6) each burglary was committed at approximately the same time; (7) Wilson was away from his own home when each burglary occurred; (8) firearms were left out at several locations; (9) cigarette butts were discovered at various homes; and (10) items of value were taken at each location. 295 Kan. at 619. We summarized this evidence showed "the manner in which [the five charged] burglaries were committed—particularly evidence of the locations of the crimes and general time frame of the crimes, and evidence that stolen items from these homes were recovered in [the defendant's] home or RV" and that this raised "a reasonable inference that the same person . . . committed those burglaries." 295 Kan. at 619-20. Ultimately, we held the district court did not abuse its discretion when it found evidence from "the seven uncharged burglaries met the probativity element of relevance to prove the disputed material fact of identity." 295 Kan. at VOL. 312 SUPREME COURT OF KANSAS 255

State v. Meggerson

620. Turning to plan, we explained because the evidence was permissible to prove K.S.A. 60-455's enumerated identity exception, there was no need to "consider [the defendant's] argument that the evidence was inadmissible to prove plan." 295 Kan. at 620. In today's case, the K.S.A. 2019 Supp. 60-455 evidence "'disclose[s] sufficient facts and circumstances of the offense to raise a reasonable inference that [Meggerson] committed'" the previous robberies and the 7-Eleven robbery. See Wilson, 295 Kan. at 618. Witness testimony established the individuals perpetrated each robbery in substantially the same manner. Video surveillance depicted the same masks, gloves, shoes, and handguns used in each crime. Bowser's black Lincoln was used as a getaway car in several robberies. Newport cigarettes were taken from many of the locations. Most of the robberies occurred within the same 24-hour time period in a small geographic area in Kansas City, Kansas, and Kansas City, Missouri. These similarities closely reflect those discussed in Wilson, including the time of the robberies, their locations, the perpetra- tors' behavior during the crimes, and the items taken. We believe the record clearly indicates that the robberies provided a sufficient basis "'to raise a reasonable inference that [Meggerson] committed'" each crime and prove identity. See 295 Kan. at 618. We hold the district court did not abuse its discretion when it determined the robbery evidence was relevant to prove Meggerson's identity. Having affirmed the district court's admission of the K.S.A. 2019 Supp. 60-455 prior crimes evidence for identity, we need not discuss its efficacy to prove plan. See 295 Kan. at 620. Moving to the final inquiry—whether the probative value of the prior crimes evidence outweighs the prejudicial effect—we again find Wilson highly instructive. Wilson classified the evidence connecting the uncharged burglaries to his case as "'minimal at best'" and therefore unduly prejudicial due to the large quantity of uncharged criminal cases. 295 Kan. at 621. We disagreed and preferred the State's framing "that identity 'was the most hotly contested issue of the trial.'" 295 Kan. at 621. We elaborated the uncharged burglaries provided "significant probative value to that issue" and noted the jury received a proper limiting instruction. 295 Kan. at 621. We held the district court did not abuse its 256 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson discretion when it determined the probative value of the prior crimes evidence of seven uncharged crimes was not outweighed by the potential for undue prejudice. 295 Kan. at 621. Wilson is directly analogous to Meggerson's case. First, the jury here also received a proper limiting instruction. See 295 Kan. at 621. Second, in Wilson the State also presented a substantial amount of prior crimes evidence detailing seven uncharged burglaries. See 295 Kan. at 621. In our view, the K.S.A. 2019 Supp. 60-455 evidence presented here was highly probative, as it linked Newport cigarettes to each robbery, as well as the strategy and methodology of the robberies, the suspect's clothing, vehicle, revolver and other handguns, the limited geographic scope, and a timeframe. Meggerson protests that the evidence became overly prejudicial when the State presented over half its case as K.S.A. 2019 Supp. 60- 455 evidence. We decline to draw such a bright line. Meggerson fails to explain how the K.S.A. 2019 Supp. 60-455 evidence unduly prejudiced him, he simply assumes it did so because it exceeded 50% of the State's case. Meggerson provides no citation that suggests this court's analysis depends on the mathematical quantity or proportion of prior crimes evidence. K.S.A. 2019 Supp. 60-455(a)'s plain language does not indicate any tipping point for when evidence strays from appropriate to unduly prejudicial based purely upon the quantity of that evidence. See K.S.A. 2019 Supp. 60-455(a). If this were the measurement for prejudice, this court would have excluded the copious K.S.A. 2019 Supp. 60-455 evidence in Wilson. See 295 Kan. at 621. Without contrary authority, Meggerson's claim fails. See Miller, 308 Kan. at 1157; Simmons, 307 Kan. at 43.

The district court properly admitted two timelines as evidence.

Meggerson next challenges the district court's admission of two timelines as evidence. He claims the district court abused its discretion when it permitted Officer Dennis McMillin and Detective Todd Taylor to present demonstrative timelines because the timelines were repetitive and cumulative, contrary to State v. Baker, 255 Kan. 680, 691, 877 P.2d 946 (1994). Officer McMillin provided an aid for the jury that compiled pic- ture evidence, videos, and admitted exhibits in a chronological time- VOL. 312 SUPREME COURT OF KANSAS 257

State v. Meggerson line. The timeline was admitted into evidence over Meggerson's objection. Meggerson analogized McMillin's timeline to an officer's report and claimed the jury could not use this tool, but must draw upon its collective memories. Detective Taylor prepared a timeline from comparison photographs he took during his investigation and photographs already in evidence. Again, Meggerson objected, claiming that the timeline should only be permitted as a demonstrative aid. The district court permitted the timeline as an exhibit. On appeal, Meggerson simply advances the argument that these timelines were cumulative and should have been excluded on that basis alone. District courts have discretion to admit or exclude cumulative evidence. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). "[O]nly an abuse of that discretion warrants reversal on appeal." State v. Han- son, No. 98,793, 2008 WL 4849344, at *2 (Kan. App. 2008) (unpublished opinion). "'Cumulative evidence is evidence of the same kind to the same point, and whether it is cumulative is to be determined from its kind and character, rather than its effect.'" State v. Dupree, 304 Kan. 43, 65, 371 P.3d 862 (2016). In Dupree, Dupree argued the district court abused its discretion after it admitted four crime scene photographs. He claimed "that the coroner did not even need to reference some of the photographs." 304 Kan. at 64-65. We noted a detective testified the photographs were an attempt to recreate a panoramic view of the kitchen where the victim was shot. Moreover, the photos had a corroborative effect on several key witnesses' accounts "about the circumstances of [the victim's] murder." 304 Kan. at 65. We explained we rarely "found an abuse of discretion in the admission of photographic evidence in a murder trial." 304 Kan. at 65 (finding no abuse of discretion). Dupree is in good company, as we have refused to find an abuse of discretion for the admission of similar evidence. See, e.g., State v. Mireles, 297 Kan. 339, 356, 301 P.3d 677 (2013) (finding no abuse of discretion for admitting two photographs of the same wound because one showed the wound close up and the other depicted where the wound was on the victim's body); State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012) (finding no abuse of discretion for admitting four photographs of a victim's autopsy because each provided additional context the others did not and showed injuries at different an- gles); Reed, 282 Kan. at 282 (holding the district court did not abuse its 258 SUPREME COURT OF KANSAS VOL. 312

State v. Meggerson discretion for the admission of a taped 911 call in addition to the dispatcher's testimony because the tape corroborated the dispatcher's testimony and captured the suspect's demeanor during the crime); State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996) (permitting over 100 photographs to be shown to the jury because, "Cumulative evidence in itself is not objectionable. Error cannot be predicated on allowing the use of such evidence."); State v. Johnson, 231 Kan. 151, 156-57, 643 P.2d 146 (1982) (no abuse of discretion for admitting testimony from two officers about certain windows). Officer McMillin's timeline focused on all the physical evidence. He created a chronological account of the robberies to aid in the State's attempt to show plan and identity. Detective Taylor's timeline depicted metadata and reconstructed the recovered cell phones' locations during crucial events. These timelines are not "to the same point," and so we hold the timelines were not cumulative and the district court did not abuse its discretion when it admitted them. See Dupree, 304 Kan. at 65; Rodriguez, 295 Kan. at 1158.

Cumulative error did not deny Meggerson a fair trial.

Finally, Meggerson asserts cumulative error denied him a fair trial. We found no error during Meggerson's trial, so the cumulative error doctrine does not apply. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015); see also State v. Blansett, 309 Kan. 401, 402, 435 P.3d 1136 (2019) (explaining that under the cumulative error doctrine, the court must identify "multiple errors to accumulate").

Affirmed.

BEIER, J., not participating.1 PATRICK D. MCANANY, Senior Judge, assigned.2

1REPORTER'S NOTE: Justice Beier heard oral arguments but did not partic- ipate in the final decision in case No.117,131. Justice Beier retired effective September 18, 2020.

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 117,131 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 312 SUPREME COURT OF KANSAS 259

State v. Davis

No. 119,871

STATE OF KANSAS, Appellee, v. ALEX DEE DAVIS, Appellant.

474 P.3d 722

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Felony Fleeing and Eluding—Statutory Elements. K.S.A. 2019 Supp. 8-1568(b)(1) and (b)(2) set out material, distinct elements for committing the felony form of felony fleeing or eluding a police officer.

2. SAME—Felony Fleeing and Eluding Police Officer—Driver's Intent to Avoid Capture. Under K.S.A. 2019 Supp. 8-1568(b)(2), the crime occurs when the driver subjectively intends to avoid capture for a felony.

3. TRIAL—Admissibility of Evidence—Preservation of Admissibility Issue for Appellate Review. A pretrial objection concerning evidence admissibility must be contemporaneously renewed during trial or otherwise made subject to a standing objection to preserve the admissibility issue for appellate review.

4. POLICE AND SHERIFFS—Invocation of Miranda Rights—Suspect Re- quired to Communicate Decision. Law enforcement's duty to scrupulously honor a suspect's decision to invoke Miranda rights requires the suspect to communicate that decision without ambiguity or equivocation.

5. EVIDENCE—Relevancy of Evidence—Substantial Connection Required between Facts and Result. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some substantial or logical connection between the asserted facts and the inference or result they are intended to establish.

6. SAME—Exclusion of Evidence—Preservation of Issue for Appeal. A party being limited by the exclusion of evidence must sufficiently proffer the substance of that evidence to preserve the issue for appeal.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed October 23, 2020. Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

260 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

BILES, J.: Following a string of property crimes earlier in the day, Alex Davis fled from a traffic stop and collided with another vehicle, killing the driver. A jury convicted him of first-degree felony murder, leaving the scene of an accident, felony fleeing or attempting to elude a police officer, felony and misdemeanor theft, and driving with a suspended license. He claims several trial errors and one sentencing error in this direct appeal. We affirm his convictions and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A man covering his face with a red bandana and wearing skeleton gloves entered a Wichita donut shop's back door early on Oc- tober 24, 2016. The man pointed a "rainbow colored" gun at an employee and demanded money. He left without taking anything. Sometime between 7:40 a.m. and 12:20 p.m. that same day, someone forced their way inside a west Wichita home and took jewelry, electronics, and a gray Volkswagen Jetta. Across the street at another house other items were taken, including a high school class ring and some watches, after a forced entry. Around noon, Wichita police officer Amber McClure saw the Volkswagen, driven by Alex Davis, run a stop sign. To McClure, this appeared to be just a regular traffic stop. She activated her body camera and turned to pull the car over. But Davis sped up, so she activated her patrol car's lights and siren in pursuit. Davis ran a red light and T-boned another vehicle's passenger side. An accident reconstruction expert testified Davis was travelling about 70 miles per hour at impact. The other vehicle's driver, James Dex- ter, was taken to the hospital where he died a few hours later from injuries caused by the crash. Davis fled the Volkswagen on foot. He dropped a pink and purple gun and a black glove with a skeleton design. He had earrings, rings, necklaces, and a men's watch in his pocket when ap- prehended. Inside the Volkswagen, police found a glove matching the one Davis dropped, a gun magazine, electronics, and other items taken from the burgled homes. When interviewed by detective James Bray, Davis admitted knowing he was being pulled over and said he fled because he thought he had an outstanding warrant and a suspended driver's VOL. 312 SUPREME COURT OF KANSAS 261

State v. Davis license. He admitted driving 75 to 80 miles per hour and said he could not stop for the red light because he was going too fast. Later, while being taken to jail, he made more incriminating remarks to Officer Pat Mulloy. Davis said, "[I]t was either going to go down like this or I was going to shoot someone." He confirmed the skeleton gloves and gun were his and in his possession for several days. But he claimed he woke up at 11 a.m. at a friend's mom's apartment, where a man named Oscar gave him the Volkswagen key and offered him a gold ring and cash in exchange for pawning some property for him. The State filed an 11-count complaint alleging crimes arising from the donut shop robbery attempt, the home intrusions, the subsequent traffic infractions, and Dexter's death. A jury acquitted Davis of the attempted donut shop robbery and two burglary counts. It convicted him of the remaining crimes. The district court sentenced Davis to a hard 25 life sentence for the felony murder. It also sentenced him to consecutive terms totaling 86 months for the remaining convictions, except the license violation, for which it sentenced him to a concurrent six- month term. The court ordered these sentences to run consecutive to the sentences in two other cases from Sumner County and Sedg- wick County. The court dismissed the second-degree murder conviction and the felony fleeing and eluding conviction in count four (based on evading capture for a felony) but stayed dismissal pending disposition on appeal. Davis timely appeals. He raises several issues tied to his convictions, which we consolidate into six: (1) whether the felony- murder conviction must be reversed because insufficient evidence supports one of the alternative means of committing the crime's underlying felony—fleeing or attempting to elude police; (2) whether his incriminating statements were inadmissible because police ignored his invocation of the right to remain silent; (3) whether his statement that "it was either going to go down like this or I was going to shoot someone" was inadmissible since it was irrelevant and unduly prejudicial; (4) whether he should have been permitted to introduce evidence of the victim's medical treatment decisions to establish an intervening cause of death; (5) whether the prosecutor shifted the burden of proof in voir dire by asking 262 SUPREME COURT OF KANSAS VOL. 312

State v. Davis prospective jurors to agree they would "not . . . hold it against either side for something that I didn't get"; and (6) whether cumulative error denied him a fair trial. He also raises a sentencing issue over a claimed 599 days of jail credit time. Jurisdiction is proper. K.S.A. 2019 Supp. 22-3601(b)(3), (4).

ALTERNATIVE MEANS

Davis argues the felony-murder instruction contained alternative means of committing the crime because it permitted the jury to convict him if it found he killed Dexter while committing either of two distinct forms of felony fleeing and eluding. He claims the felony-murder conviction must be reversed because insufficient evidence supported a conviction for fleeing to avoid capture for a felony. See State v. Cot- trell, 310 Kan. 150, 157, 445 P.3d 1132 (2019) ("In 'an alternative means case, . . . sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt.'"). Davis advances two seemingly distinct arguments, but we combine them into one since the sufficiency challenge is only legally significant for the alternative means argument. This is because the jury convicted him of both forms of fleeing and eluding, and at sentencing the district court dismissed the count he claims lacked sufficient evidence. The only remaining practical impact on Davis is whether alternative means provided a pathway for the jury's felony-murder verdict. To succeed on this claim, Davis must demonstrate: (1) the two felony fleeing and eluding theories were alternative means of committing felony murder; and (2) there was insufficient evidence to support one of those means. See Cottrell, 310 Kan. at 157. If he fails on either, his challenge fails. As explained, we agree with the first contention, but not the second. We hold sufficient evidence supports both alternative means alleged for committing felony murder.

Additional facts

In the felony-murder jury instruction, the court told the jury:

"In count one the defendant is charged with murder in the first degree. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:

"One, the defendant killed James Dexter. Two, the killing was done while the defendant was committing fleeing or attempting to elude an officer. Three, VOL. 312 SUPREME COURT OF KANSAS 263

State v. Davis this act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kan- sas. The elements of fleeing or attempting to elude an officer are listed in instruction numbers nine and 10." (Emphasis added.)

In the fleeing and eluding instructions, the court first told the jury:

"In count three the defendant is charged with fleeing or attempting to elude a police officer. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved: One, the defendant was driving a motor vehicle. Two, the defendant, as given – that should be was – the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop. Three, the defendant willfully failed or refused to bring the motor vehicle to a stop for or otherwise fled or attempted to elude a pursuing police vehicle. Four, the police officer's vehicle from which the signal to stop was given was appropriately marked, showing it to be . . . an official police vehicle. Five, the defendant engaged in reckless driving. Six, this act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kansas. "The term willfully means conduct that is purposeful and willful and not acci- dental. Reckless driving means driving a vehicle under circumstances that show a real- ization of the eminence [sic] of danger to another person, or the property of another, where there is a conscious and unjustifiable disregard of that danger."

The jury instruction on the alternate fleeing and eluding count, count four, listed the same elements except element five. The language "the defendant engaged in reckless driving" was replaced with "the defendant attempted to elude capture for theft, as alleged in count seven." And on count seven, the court instructed:

"In count seven the defendant is charged with theft. The defendant pleads not guilty. To establish this charge each of the following claims must be proved: One, [L.A.] was the owner of the property. Two, the defendant obtained or exerted unauthorized control over the property. Three, the defendant intended to deprive [L.A.] permanently of the use or benefit of the property. Four, the value of the property was at least $1,500, but less than $25,000. This act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kansas. A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State."

The jury found Davis guilty of the first-degree murder charge on both the fleeing and eluding theories and on the theft alleged in count seven.

Standard of review

Davis argues the two fleeing and eluding theories presented the jury with alternative means of committing felony murder, and that there was insufficient evidence to support a conviction on one of them.

264 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

"When a defendant challenges the sufficiency of the evidence of an alternative means crime, 'sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt.' An alternative means crime is one that can be committed in more than one way. [Citations omitted.]" State v. Rucker, 309 Kan. 1090, 1094, 441 P.3d 1053 (2019).

Discussion

When the State charges felony murder based on multiple underlying felonies, it is an alternative means crime and under our current caselaw a super-sufficiency requirement is triggered. See Rucker, 309 Kan. at 1094 (felony murder an alternative means crime when defendant charged with killing while committing or attempting robbery, rape, aggravated kidnapping, and aggravated burglary); State v. Reed, 302 Kan. 390, 398-99, 352 P.3d 1043 (2015).

The State charged Davis with an alternative means crime.

The first question is whether the two fleeing and eluding charges are effectively separate crimes, i.e., alternative means of committing the offense. A statute states alternative means of committing a crime when it lists "distinct alternatives for a material element of the crime," but not when it "merely describe[s] a material element or a factual circumstance that would prove the crime." State v. Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012). The fleeing and eluding statute provides:

"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop, and who:

(1) Commits any of the following during a police pursuit: (A) Fails to stop for a police road block; (B) drives around tire deflating devices placed by a police officer; (C) engages in reckless driving as defined by K.S.A. 8-1566, and amendments thereto; (D) is involved in any motor vehicle accident or intentionally causes damage to property; or (E) commits five or more moving violations; or

(2) is attempting to elude capture for the commission of any felony, shall be guilty as provided in subsection (c)(2).

. . . .

"[c](2) Violation of subsection (b) is a severity level 9, person felony." K.S.A. 2019 Supp. 8-1568. VOL. 312 SUPREME COURT OF KANSAS 265

State v. Davis

The statute uses the word "or" to separate the felony crime described in subsection (b)(1) from the one described in subsection (b)(2). "To determine if an 'or' separates an option that is not an alternative means or separates alternative means, there are several considerations." Brown, 295 Kan. at 193. The touchstone is whether the Legislature intended "to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element . . . ." 295 Kan. at 194. "Typically . . . a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute." 295 Kan. at 196.

"Regardless of such subsection design, however, a legislature may list additional alternatives or options within one alternative means of committing the crime. But these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing the crime, that is, if they do not require proof of at least one additional and distinct material element. Rather they are only options within a means if, as discussed above, their role is merely to describe a material element or to describe the factual circumstances in which a material element may be proven." 295 Kan. at 196-97.

In Brown, the court considered language in the aggravated indecent liberties statute that defined the crime as doing prohibited acts "'with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both.'" 295 Kan. at 200-01 (quoting K.S.A. 21-3504[a][2][A]). The Brown court held this did not set out alternative means of committing the crime. "[T]he language . . . is merely descriptive of the types of factual circumstances that may prove the distinct, material element of intent to arouse or satisfy sexual desires, that is, the mens rea required for commission of the offense." 295 Kan. at 201. These were "a secondary matter, the potential yet incidental objects of the offender's required intent." 295 Kan. at 202. But in State v. Daws, 303 Kan. 785, 789, 368 P.3d 1075 (2016), the court held the aggravated burglary statute did set out alternative means by criminalizing "'without authority, entering into or remaining within'" a place with a particular intent. It reasoned that "'[t]he phrases "entering into" and "remaining within" refer to legally distinct factual 266 SUPREME COURT OF KANSAS VOL. 312

State v. Davis situations'" because "entering into" refers to crossing the plane of a building's exterior wall, while "remaining within" refers to continued presence in a building after entry occurred. 303 Kan. at 789. In State v. Castleberry, 301 Kan. 170, 339 P.3d 795 (2014), the court addressed the fleeing and eluding statute, but its holding does not resolve Davis' claim. The Castleberry court held the "penalty enhance- ment factors" in K.S.A. 8-1568(b)(1) "are 'options within means,' rather than alternative means." 301 Kan. at 184-85. It reasoned that under subsection (b)(1), the Legislature obviously intended to enhance the crime's severity when "the perpetrator endangered the public safety by the way in which he or she drove his or her vehicle while fleeing or attempting to elude the police." 301 Kan. at 184-85. The State refers us to an unpublished Court of Appeals case that reached the same conclusion. See State v. Goodpaster, No. 108,631, 2014 WL 702395, at *7 (Kan. App. 2014) (unpublished opinion). The issue here is whether there is a material difference between the (b)(1) felony crime and (b)(2) felony crime. We hold there is. K.S.A. 2019 Supp. 8-1568(b)(1) and (2) set out alternative means of committing the felony form of fleeing and eluding. These subsections refer to distinct factual situations. One type of conduct—dangerous driving—elevates the crime to a felony under subsection (b)(1). And that subsection touches on conduct creating an immediate public danger. But evading capture for a felony under subsection (b)(2) is different. It does not necessarily present the same immediate public danger, and a person can commit the subsection (b)(2) crime without engaging in the dangerous behaviors described in subsection (b)(1).

Sufficient evidence supports both alternative means.

The next question is whether sufficient evidence supports both alternative means articulated in the court's jury instructions. At the outset, we note Davis does not challenge the State's evidence supporting reckless driving, so our focus shifts to whether there was sufficient proof Davis was "attempting to elude capture for the commission of any felony." He contends this crime requires evidence that Officer McClure subjectively believed she was attempting to capture him for a felony, rather than a traffic-related matter, and the evidence only shows she was trying to stop him for running a stop sign. In other VOL. 312 SUPREME COURT OF KANSAS 267

State v. Davis words, he contends our attention should be on the officer's belief—not his. This requires us to interpret the fleeing and eluding statute. See State v. LeClair, 295 Kan. 909, 911, 287 P.3d 875 (2012) (interpreting statute to resolve defendant's argument that conviction lacked sufficient evidence "as a matter of law" based on defendant's interpretation of the statute). "Statutory interpretation is a question of law over which an appellate court exercises unlimited review." State v. Downing, 311 Kan. 100, 103, 456 P.3d 535 (2020). And when interpreting a statute, the court begins its "analysis with the touchstone of statutory interpretation: legislative intent. The best and safest rule for discerning this intent is the plain language of the statute. Only when the statutory language is unclear or ambiguous [does the court] move on to consider tools of statutory construction." State v. Lundberg, 310 Kan. 165, 170, 445 P.3d 1113 (2019). The operative statutory language provides that "any driver" who flees from a traffic stop and "who . . . is attempting to elude capture for the commission of any felony" commits felony fleeing and eluding. To "attempt" means "to make an effort to do, get, have, etc.; try; endeavor . . . ." Webster's New World College Dictionary 92 (5th ed. 2014); see American Heritage Dictionary of the English Language, 85 (1970) (defining "attempt" as "[t]o endeavor to do or make; to try"). This implies an actor's actions are calculated to achieve an objective harbored by the actor. See State v. Louis, 305 Kan. 453, 461, 384 P.3d 1 (2016) ("[A]n attempt requires specific intent to commit the object crime . . . ."). Davis' proposed interpretation emphasizing the officer's state of mind relies on State v. Carter, 30 Kan. App. 2d 1247, 57 P.3d 825 (2002). Carter held that under subsection (b)(2) a defendant's "reason for eluding capture and his actual status were irrelevant and that only the officer's reason for attempting to capture [him] was significant." 30 Kan. App. 2d at 1254. In Carter, police investigating a stabbing attempted to pull over a car registered to the defendant, who was the stabbing suspect. Defendant fled from the traffic stop. The State charged him with aggravated battery for the stabbing, and felony fleeing and eluding for leaving the traffic stop. The jury acquitted him of the aggravated battery, but convicted him of felony fleeing and eluding based on attempting to evade capture for the aggravated battery. The Carter 268 SUPREME COURT OF KANSAS VOL. 312

State v. Davis panel held the evidence was sufficient on the fleeing and eluding charge, despite the aggravated battery acquittal. 30 Kan. App. 2d at 1254. To reach that result, Carter relied on State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997). In Hudson, the court examined the obstruction of legal process statute, which provided "[o]bstructing legal process or official duty" was a felony "in the case of a felony," but only a misdemeanor "in a case of a misdemeanor." 261 Kan. at 536 (quoting K.S.A. 21-3808). The Hudson court held that whether the "official duty" inter- fered with was "in a case of a felony" was "to be defined in terms of the officer's authority, knowledge, and intent." 261 Kan. at 538-39. The court said the "touchstone" for the offense was the officer's reason for approaching the defendant who then flees or resists. But the reasoning supporting the outcome in Hudson is not clear. The only authority cited was a Court of Appeals case that held when a defendant was charged with obstructing a court order's execution, it was not necessary to prove defendant knew of the order's existence. See 261 Kan. at 538 (citing State v. Lyne, 17 Kan. App. 2d 761, 844 P.2d 734 [1992]). And in determining the Hudson rule applied to the fleeing and eluding statute, the Carter panel reasoned that both statutes are designed to encourage cooperation with police and punish those who make the officer's job more difficult and dangerous. 30 Kan. App. 2d at 1253. Here, the State contends the obstructing legal process statute does not provide a sound analogy to the fleeing and eluding statute because the legal process statute focuses on the duty obstructed, while the fleeing and eluding statute centers on the defendant's reason for not wanting to be captured. We agree. The fleeing and eluding statute is distinguishable. The obstruction statute uses passive language to make the defendant's obstruction of the officer's duty a felony or misdemeanor depending on whether the obstruction occurred "in a case of" a felony or misdemeanor. In sharp contrast, the fleeing and eluding statute is a felony if a fleeing "driver . . . is attempting to elude capture for the commission of any felony VOL. 312 SUPREME COURT OF KANSAS 269

State v. Davis

. . . ." The most natural reading of this language is that it refers to the driver's state of mind about attempting to elude capture. Under the statute's plain language, the crime turns on the driver's subjective intent. Given this rather obvious statutory perspective, we hold there was sufficient evidence for the jury to conclude Davis fled to avoid capture for a felony. Although the jury acquitted him of attempted aggravated robbery, the State produced evidence tending to show Davis committed that crime the same morning as the attempted traffic stop. And at the time of the stop, Davis was driving a stolen vehicle containing stolen property from two forced-entry home burglaries. A reasonable juror could infer from these circumstances that Davis was attempting to avoid capture for the commission of multiple felonies. See, e.g., State v. Thach, 305 Kan. 72, 84-85, 378 P.3d 522 (2016) (holding circumstantial evidence demonstrated defendant entered home with intent to commit aggravated battery when there was testimony defendant accompanied acquaintance to victim's house, acquaintances had discussed killing victim, and acquaintances were upset with victim for boasting about beating up an acquaintance's friends). K.S.A. 2019 Supp. 8-1568(b)(1) and (b)(2) set out material, distinct elements for the crime of felony fleeing or eluding a police officer. Under the plain language of subsection (b)(2), the crime occurs when the driver subjectively intends to avoid capture for a felony. And the circumstances here are sufficient to support a jury finding that Davis intended to avoid capture when he fled from McClure: he was driving a stolen car containing stolen property and other evidence ty- ing him to two residential break-ins and an attempted aggravated robbery earlier on the same day as the chase. We hold sufficient evidence sustains the felony-murder conviction.

ADMISSION OF THE INCRIMINATING STATEMENTS

Davis argues the district court erred when it admitted into evidence his statements to police. In his view, they were obtained in violation of his rights under the Fifth Amendment to remain silent and Miranda v. 270 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He believes he invoked those rights by saying "huh-uh" when detectives completed the Miranda warnings and asked if he wanted to talk to them.

Additional facts

When interviewed by police, Davis admitted he knew he was being pulled over and said he fled because he thought he had a warrant and that his license was suspended. He admitted driving 75 to 80 miles per hour and said he could not stop for the red light because he was going too fast. Detective Bray, who conducted the interview, testified he first collected personal history information from Davis. Then, he presented a Miranda rights form to Davis and read those rights to him. He asked Davis if he understood each right listed at the end of each line on the form. Davis did not have any questions about what any of them meant. And after going over the rights, Bray asked Davis if he wished to answer questions. Bray said Davis "[s]ort of groaned and asked [Bray] what [he] wanted to talk about. And at the same time he was doing that, he was initialing yes or signing it [on the form], so [Bray] took that as an affirmative, that he wanted to go ahead and answer questions." Bray denied there was "anything during that advisory where [Davis] appeared to, you know, not want to proceed or that caused [him] to feel that [he] needed to clarify what [Davis'] intentions were." And when asked whether Davis indicated at any point during the 40-minute interview that he wished to stop the questioning, Bray said,

"There was at one point later in the interview where he kinda made a statement about I don't want to talk to you, but in the same—at the same time that he said that, he just continued answering the questions. I don’t want to talk about this, but, and he continued talking. So we didn't clarify that but that's the only statement he made like that."

Bray agreed he did not have to prompt Davis to continue talking at that point, and that "it was just kind of a stream of statements coming from his mouth." Then, the detective testified "our conversation just continued, you know, even though he'd said that[,] it just continued. There was no further explanation or nothing else VOL. 312 SUPREME COURT OF KANSAS 271

State v. Davis

I needed to say to him to get him to continue, we just continued our conversation." After the interview with Bray, Davis made additional remarks to Officer Mulloy, who transported him to jail. He told Mulloy about the traffic stop, saying: "[I]t was either going to go down like this or I was going to shoot someone." On cross-examination at trial, Mulloy testified Davis was upset at the time and had recently been told the victim died. Mulloy reminded Davis of his Miranda rights, then began asking Davis questions. Davis confirmed the skeleton gloves and gun were his and in his possession for several days. He told Mulloy he woke up at 11 a.m. at a friend's mom's apartment, where a man named Oscar gave him the Volkswagen key and offered him a gold ring and some cash to pawn some property for him. At a hearing on the statements' admissibility, Davis argued they should be excluded. He claimed he said he was "done talking" at several points during the interview with Bray. And he argued the statements to Mulloy were tainted by "ongoing violations from when he invoked or attempted to invoke" with Bray. The court ruled the statements admissible. It said it did not "have any concerns with regard to Miranda with regard to the statements . . . . [C]learly the defendant's wanting to talk, the comments about not wanting to talk, clearly he wants to continue to talk about things in general and just immediately keeps talking, but is avoid- ing certain subjects." It is important to note both parties and Bray were working from a transcript of the interview during the admissibility hearing. But that transcript was not offered into evidence at the hearing and is not in our record on appeal. And the form Davis initialed and signed was admitted but is also not in the record.

Issue preservation

The State asserts Davis did not preserve this issue for appellate review because he did not lodge contemporaneous objections to his statements' admission. Some additional facts are necessary to address this. Davis' counsel told the court after jury selection, but before opening statements, that he wished to "address . . . now, so we 272 SUPREME COURT OF KANSAS VOL. 312

State v. Davis don't have an argument objection during the course" about Davis' interactions with others after the crash that tended to show he lacked remorse. Specifically regarding Bray's testimony, Davis' counsel argued,

"There's also a statement made [during] the questions by . . . Detective Bray, and we heard part of the statement, but the question is when you took off running, did you even look back at the driver or check on him or anything. The answer's I didn't really care, because I wasn't thinking. Again, you know, those are issues that are after the fact than anything along those lines, that were stated to Officer McClure. I'm trying to look at my notes exactly on that, but all those issues are after the fact. And what Mr. Davis is being accused of is actions that occurred before the crash, the crash itself, fleeing from the crash. But as far as whether he made inquiry on whether [statements to Bray—in particular] somebody was okay afterwards or investigated if somebody was injured afterwards is not relevant to the charges."

The court then ruled,

"Well, the comment on the detective, I'm going to overrule any objection to that, because it occurs after Miranda and it asks him about actions he took. He's charged with leaving the scene of an accident, fleeing and eluding. I mean, it's immediate, what did you do, I mean, did you stay, did you go, that sort of—and that goes to the heart of those issues." (Emphasis added.)

At trial, Bray testified before Mulloy. During Bray's testimony, the State began asking him questions about his interview. Bray testified he advised Davis of his Miranda rights and Davis agreed to speak with him. He then testified Davis was willing to talk about the collision and what led up to it, but not other subjects. He said Davis acknowledged driving the Volkswagen, knew he was being pulled over, and did not want to pull over because he thought he had a warrant. He testified Davis recalled doing 75 to 80 miles per hour while trying to get away, and trying to stay under 100. And he testified Davis acknowledged trying to stop for the red light but could not because he was going too fast. And he testified he jumped out of the car and ran after the crash and that when quizzed if he looked into the other car to see if anyone was hurt he told Bray "he didn't care, he was trying to get away." At that point, defense counsel interrupted to "object on pretrial motions." Counsel referenced the pretrial hearing and told the court he wanted to "make sure we renew any objections, any ar- VOL. 312 SUPREME COURT OF KANSAS 273

State v. Davis guments we had to keep [sic] Mr. Mulloy's testimony." He objected to the "going to go down" statement as irrelevant and unduly prejudicial. The prosecutor then proffered all the evidence it would seek from Mulloy—the spontaneous statement and the "additional statements . . . after being reminded that he has Miranda rights." After the proffer, defense counsel said he was "just renewing earlier objections." The State claims these circumstances trigger K.S.A. 60-404 limitations. It provides:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection." K.S.A. 60-404.

A pretrial objection generally is not enough to satisfy K.S.A. 60-404's contemporaneous objection rule because "'an in limine ruling "is subject to change when the case unfolds."'" State v. Bal- lou, 310 Kan. 591, 613, 448 P.3d 479 (2019). Accordingly, "a pretrial objection must be contemporaneously renewed during trial or preserved through a standing objection." State v. Inkelaar, 293 Kan. 414, 421, 264 P.3d 81 (2011), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). The State argues Davis did not satisfy this requirement. It contends he only objected to Mulloy's testimony about his spontaneous comments during transport, and not Mulloy's further questioning after re- minding Davis of his Miranda rights. It further asserts Davis did not object during Bray's testimony that he invoked his Fifth Amendment right to silence until it was too late. The State's view of the record is mistaken. Davis reiterated he was renewing his pretrial objections to Mulloy's testimony after the prosecutor proffered Mulloy would testify to both the spontaneous and post-Miranda-reminder statements. And Davis repeated his pretrial objections during Bray's testimony during the detective's testimony. Nevertheless, raising the issue after jury selection and before any testimony was presented at trial, as well as raising the issue again before Mulloy's testimony began, was sufficient, even if Davis' counsel had not objected at all during Bray's testimony. Notably, one of the court's specific grounds for admitting the challenged portions of Bray's 274 SUPREME COURT OF KANSAS VOL. 312

State v. Davis testimony during the discussion just before opening statements was that they related to statements Davis made after the Miranda waiver. Under these facts, we hold counsel's objections sufficiently preserved this issue for appeal.

Standard of review

"'When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge's decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard. An appellate court does not weigh evidence to find facts.' "When the material facts underlying a trial court's decision on a motion to suppress are not in dispute, the question of suppression is a matter of law over which we exercise unlimited review. [Citations omitted.]" State v. Walker, 304 Kan. 441, 453, 372 P.3d 1147 (2016).

Discussion

Davis argues the "huh-uh" response in the transcript to Bray's question whether he wanted to talk was unambiguously negative and sufficient to invoke his right to silence. And he asserts his statements to Mulloy are also inadmissible because police did not honor the invocation to Bray. The State argues the facts do not reveal any Miranda invocation. We agree with the State.

The interview statements with Detective Bray were admissible.

"'The rules governing an accused's constitutional rights during a custodial interrogation are well established: "The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent." Moreover, in Kansas, "[n]o person shall be a witness against himself [or herself]." Kan. Const. Bill of Rights, § 10. "[A] suspect's invocation of his or her right to remain silent must be scrupulously honored and cuts off further interrogation elicited by express questioning or its functional equivalent." . . . . "' . . . If a suspect invokes the right to remain silent during questioning, that interrogation must cease. Thereafter, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" "'More recently, law enforcement's duty to scrupulously honor a suspect's decision to invoke his or her Miranda rights has been conditioned upon the suspect's ability to communicate that decision without any ambiguity or equivocation. See Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 176 VOL. 312 SUPREME COURT OF KANSAS 275

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L.Ed.2d 1098 (2010) (suppression only required for denial of unambiguous invocation of Miranda rights; objective inquiry). This court has said that we test the clarity of a Miranda rights invocation by determining whether a reasonable police officer under the circumstances would understand the suspect's statement as an assertion of a Miranda right. [Citations omitted.]'" Walker, 304 Kan. at 454.

On this record, Davis' "huh-uh," as apparently reflected in the transcript as a negative response, remains ambiguous in context, and the recording from which the transcript was prepared is not in the record. For that matter, neither is the transcript. And there is no testimony from the transcriptionist to explain the parenthetical negative response attributed to the comment. But what is in the record is Bray's testimony contradicting what would seem to be the transcriptionist's view. The detective testified "there was kind of this groan, it's really noncommittal, but at the same time he's asking what are we gonna talk about and at the same time he's signing the form." Under these circumstances, it was appropriate for the court to resolve the ambiguity on the record before it. It did this by concluding there was no problem relating to possible Miranda violations, and that Davis clearly wanted to talk. Bray's testimony that Davis' response was a noncommittal grunt contemporaneous with signing the waiver and asking what Bray wanted to talk about supply substantial competent evidence to support the court's ruling there were no Miranda violations. And this ruling was correct as a matter of law. A reasonable law enforcement officer under these circumstances would not have viewed Davis' response as an assertion of Miranda rights. Davis did not unambiguously invoke his right to remain silent before talking to Bray. Finally, we note Davis does not renew his claim made to the district court that he invoked his right to silence later in the interview with Bray.

Davis' statement to Officer Mulloy was admissible.

Davis next argues his statement to Mulloy that "it was either going down like this or I was going to shoot someone" was irrelevant and unduly prejudicial. He claims it was error not to exclude it. We disagree. In admitting this statement over Davis' objection, the district court ruled:

276 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

"Right. Well, specifically, with the comments, the unsolicited comment he makes about, you know, it was either this or I was going to shoot somebody, or the words that were to that effect, I do think they go to the central issues and are probative, relevant, I should say, evidence as to the felony murder, the depraved heart, the whole, you know, what his intent and motive was, was it simply just speeding or—I think it's critical. So I will allow testimony on that."

On review of a decision to admit evidence, appellate courts consider first whether the evidence is relevant. If the court finds the evidence is relevant, the reviewing court applies the statutory rules governing the admission or exclusion of evidence. State v. Jenkins, 311 Kan. 39, 44, 455 P.3d 779 (2020). "On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard." State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). But even if evidence is relevant and otherwise admissible, a district court may exclude it

"if it determines that the evidence's probative value is 'substantially outweighed' by its prejudicial effect [under] K.S.A. 60-445. . . . 'On appeal, this determination is reviewed under an abuse of discretion standard, and the burden of proof is on the party alleging that the discretion was abused.' As this court has repeatedly held: "'"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based."'" State v. Ross, 310 Kan. 216, 224-25, 445 P.3d 726 (2019).

Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some substantial or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Reid, 286 Kan. 494, 502-03, 186 P.3d 713 (2008). "This definition incorporates two requirements—the evidence must be both material and probative. Evidence is material when the fact it supports is in dispute or an issue in the case and is probative when it has a logical tendency to prove a material fact. [Ci- tations omitted.]" State v. Huddleston, 298 Kan. 941, 959, 318 P.3d 140 (2014). VOL. 312 SUPREME COURT OF KANSAS 277

State v. Davis

The State contends this evidence was relevant both to prove defendant possessed a gun, and to prove his conduct was reckless because he knew his actions were dangerous and likely to end badly for himself or someone else. Davis contends his statement was not relevant because the court mentioned felony murder in its ruling, but did not address the State's argument that the evidence was relevant to the attempted aggravated robbery and second-degree murder charges. Both possession of the gun and recklessness were material because they were elements of the attempted aggravated robbery and second-degree murder charges. K.S.A. 2019 Supp. 21-5420(b)(1) (reciting being armed with a dangerous weapon as element of aggravated robbery); K.S.A. 2019 Supp. 21-5403(a)(2) (listing being reckless as element of second-degree murder); see 1 McCor- mick on Evidence § 185 (8th ed. 2020) (noting evidence immate- rial when "the truth or falsity of the proposition that the evidence is offered to prove has no implications for an element of the claim or offense charged or to a recognized defense"). The district court did not abuse its discretion by concluding the evidence was probative. At the least, the statement Davis might have shot someone tends to demonstrate he possessed a gun. And although the district court did not mention that in its ruling, it did conclude the evidence was probative to the second-degree murder charge—"the depraved heart . . . ." Admittedly, the probative link between the statement and Da- vis' reckless state of mind is not as obvious. A person is "reckless" when they "consciously disregard[ ] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2019 Supp. 21-5202(j). And when Davis made the statement, he was upset because he learned Dexter died from his injuries. But even with that, it appears Davis' statement makes it more likely to be true that, while he was fleeing from McClure, he consciously disregarded a substantial and unjustifiable risk that another motorist could be killed. See 1 McCormick on Evidence § 185 (8th ed. 2020) ("Take, for example, evidence that a defendant charged with assaulting a neighbor has a reputation for 278 SUPREME COURT OF KANSAS VOL. 312

State v. Davis being nonviolent. Knowing that someone has this reputation seems to make it less likely that he would commit an assault, presumably because we accept the underlying generalization that a smaller proportion of people with a reputation for nonviolence assault their neighbors than is the case for people generally."). As such, the district court did not abuse its discretion based on relevance. The next question is whether the district court abused its discretion by allowing the evidence despite the risk of undue prejudice. "Kansas law favors the admission of otherwise relevant evidence, and the exclusion of relevant evidence is an extraordinary remedy that should be used sparingly." State v. Seacat, 303 Kan. 622, 640, 366 P.3d 208 (2016). The burden of persuading a reviewing court that an abuse of discretion occurred is on Davis; and, as the State points out, Davis' only argument on this point is that the "prejudicial effect on Mr. Davis' case is so obvious it requires no explanation." This is decidedly an insufficient argument. We hold Davis fails to carry his burden to show abuse of discretion.

EVIDENCE ABOUT THE VICTIM'S MEDICAL TREATMENT DECISIONS

Davis argues the district court erred by excluding evidence Dexter delayed treatment for his injuries. He argues this was both a violation of the evidence statutes and a deprivation of his right to present a defense under the United States Constitution. The State argues Davis failed to preserve the argument for appellate review because he did not proffer the excluded evidence. We agree with the State.

Additional facts

Dr. James Haan, who treated Dexter, testified concerning cause of death. He said Dexter died at 4:15 p.m., a few hours after the crash, from injuries sustained in the collision. Haan said Dexter arrived at the hospital at 12:55 p.m. He had low blood pressure but was still talking. He suffered from multiple chest fractures and severe internal bleeding. Haan testified he attempted to address the injuries and save Dexter. VOL. 312 SUPREME COURT OF KANSAS 279

State v. Davis

On cross-examination, Haan said Dexter consented to being intu- bated but requested surgery not be performed until absolutely necessary. Haan said he tried to stabilize Dexter to be able to treat him through radiology. Defense counsel then asked: "If he had not expressed a desire to put off surgery unless it was absolutely necessary, would you have, on your decision, started operating on him faster or earlier than you did?" The prosecutor objected on relevance grounds before Haan answered, and the court sustained the objection. There was no proffer about what Haan's answer might have been. Defense counsel asked Haan a single additional question about how much time elapsed between Dexter's arrival at the hospital and his death, and then ended the cross-examination.

Discussion

Prior to addressing the issue's merit, we must first decide whether this matter is preserved for appellate review. We hold it is not. K.S.A. 60-405 provides,

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers."

And under our caselaw,

"A party being limited by the exclusion of evidence must sufficiently proffer the substance of the evidence to preserve the issue on appeal. In this regard, K.S.A. 60-405 has a dual purpose: (1) It assures the trial court is advised of the evidence at issue and the nature of the parties' arguments; and (2) it assures an adequate record for appellate review. When the party fails to provide a sufficient proffer of the substance of the evidence, appellate review is precluded because the appellate court lacks a basis to consider whether the trial court abused its discretion.

"But no formal proffer is required if an adequate record is made in a manner that discloses the evidence sought to be introduced. Answers to discovery, the parties' arguments, or in-court dialogue may satisfy K.S.A. 60-405 depending on the circumstances. In considering the adequacy of a proffer made to the trial court, this court has considered information made known both contemporaneously with the trial court's ruling and provided after the trial has concluded. [Citations omitted.]" State v. Swint, 302 Kan. 326, 332-33, 352 P.3d 1014 (2015).

At Davis' trial, there was no proffer, formal or informal. In State v. Hudgins, 301 Kan. 629, 346 P.3d 1062 (2015), an informal proffer was 280 SUPREME COURT OF KANSAS VOL. 312

State v. Davis inadequate to preserve appellate review of excluded evidence relating to a police officer violating department policy during a high-speed chase. Counsel proffered the policy and asserted the officer violated it. But the Hudgins court held, "From the record created by Hudgins, we are not aware what, if any, departmental policy might be in dispute or how that policy may have been violated. As a result, we lack sufficient information to determine whether evidence of the unspecified violation might have been relevant." 301 Kan. at 651. Similarly, the record here does not divulge what Haan would have said about Dexter's wishes concerning his medical treatment. And it does not explain whether another course of treatment was more likely to succeed, or if so, how much more likely. So even assuming this type of evidence could be relevant in defending felony—and second-degree murder charges, there is no information for this court to assess on appellate review whether that line of questioning would have elicited relevant evidence. We hold there is an inadequate basis for appellate review.

PROSECUTORIAL ERROR

Davis contends reversible prosecutorial error occurred during voir dire. He claims the prosecutor shifted the burden of proof to Davis by asking prospective jurors not to hold the absence of evidence on any factual point against the State.

Additional facts

During voir dire, the prosecutor asked a prospective juror if she could "understand that the types of information you might need to decide if someone is guilty or not guilty of a crime might be very different types of information than what you would need to decide what punishment that person should receive if they're guilty." He then made the case that those were "[t]wo totally different thought processes, two totally different sets of information." And implying that was the reason, he asked if it would surprise the juror that "the judge is going to limit the evidence that you hear." The prospective juror admitted it did surprise her a little bit and said she wanted to hear all the evidence. The prosecutor answered by saying,

VOL. 312 SUPREME COURT OF KANSAS 281

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"You want to hear everything, okay. I have no problem saying this, there will be limits to the evidence that you hear and those limits apply to both sides, okay. So it's not like the rules are different, you know, the State can put on some evidence that the defense can't put on and vice versa. The rules of evidence are the same, what's relevant and admissible is relevant and admissible, period. "But that said, there might be things that are not really relevant or admissible, things that, you know, pull on your heart strings and are very emotional, might cloud your judgment, right, might make it harder for you to make a good decision, or things that are repetitive, you know, just the same thing again and again and again, through five different witnesses saying the same thing, at some point might be kind of distracting, might be taking your time, might be causing you to forget other more important details. Right?"

The prospective juror persisted that "if you've got to make a good decision you want to know the whole story." The prosecutor replied, "You do. But ultimately, you understand you have to make a decision based on the evidence had – you receive, right?" The prospective juror agreed, and the prosecutor continued,

"And it's the State's obligation to put on what it believes is the most helpful, best evidence. If the defense chooses to put on witnesses or evidence, they can, if they choose to put on evidence just by cross-examining the State's witnesses, they can. If they don't want to do anything, they don't have to, because the burden of proof's on the State. You understand that?"

The prospective juror said she did. The prosecutor continued with the following exchange: "[Prosecutor]: So for any number of those reasons, you may not hear everything, but you have to just accept that whatever I've been given is what both sides want me to get. "[Prospective juror]: True. "[Prosecutor]: You know? Okay. If there's something else out there that someone wanted to introduce, they could have chosen to do it, they chose not to, whatever side you're thinking about, doesn't matter. So you just have to go with what you got, all right?"[Prospective Juror]: Okay. "[Prosecutor]: And you understand that the rules about what's admissible and not admissible applies to both sides? So let's say that Ms. Burks asks a question and Mr. Owens, ah, I don't like that, he objects, Judge sustains the objection. That means that you don't get to hear the answer or the evidence doesn't come in. You understand you cannot hold that against the defendant? "[Prospective Juror]: Right. "[Prosecutor]: Well, the defense is trying to keep me from hearing the whole story. That's not how to works, right? "[Prospective Juror]: Right. "[Prosecutor]: All that's happened in that example is the Judge has made sure that the State followed the rules. 282 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

"[Prospective Juror]: Right. "[Prosecutor]: Right? And the same is true the other way, let's say Mr. Ow- ens asks a question, you're like oh, man, that's a great question, I've been waiting the whole trial to hear the answer to that question, and I stand up and I object and the Judge says nope, sustained, the witness is not going to tell you. You can't hold that against the State, either, right? Because that's just the Judge holding the same rules to both sides, right?"

The prospective juror agreed. But another asked, "What if that omission that is not presented by either side is—can that be enough to make you have that reasonable doubt on this person right here? This now innocent man right now?" The prosecutor responded,

"That's like a $5 million question there. You get to decide that, okay. You get to decide how important something is. That said, ultimately, if you're a juror in this case, you're going to take an oath to decide this case based on the facts and the law that are you given. So it's not really fair to either side for you to speculate about well, no one ever talked about this and I bet that it would have—that this other thing would have been Y or X, and so because of that I'm going to have a reasonable doubt. Right? "It's not—you're not invited to speculate or to guess what other evidence might or might not exist, your job is to look at what you have, make the best decision based on what you got. Kind of like in your school disciplinary type of settings, right? You got to make an informed decision based on the information that you have, okay. . . .?"

A third prospective juror chimed in,

"[Y]ou were talking about the omission of certain details and if that seemed wrong. And it just seems strange to me that, say, if it could be evidence that could change it, but it gets omitted by both sides, that could be the difference between somebody being innocent or guilty. So how does that work?"

The prosecutor answered,

"Well, again, you have to decide whether something is important or not important, I can't say whether it's important or not important. And of course, we're all talking hypothetically right now, so it's even more difficult. But again, as long as we all acknowledge that both sides have the opportunity to call witnesses, subpoena people, ask questions, put on exhibits, it's really only fair for you to assume that if it was important, one side or the other would bring it up, right? "Because if we start to make decisions based on things that aren't introduced, I mean, that's where you can get to someone with those documentaries where Judge is talking about, right, where jury's start to make decisions off of things that neither side has a chance to cross-examine or question or challenge, you know. So we—you know, so that's why you take that oath to say I'm going VOL. 312 SUPREME COURT OF KANSAS 283

State v. Davis to make my decision base order what happens in the courtroom and I'm not going to hold it against either side for something that I didn't get. I'm going to look at what I got, because that's what the law says I'm supposed to do, is to look at what I got and make my best decision based on it. Does that make sense?"

"[Prospective Juror]: (Juror nodding head up and down.)

"[Prosecutor]: I mean, I get it, right, it's kind of this competing idea of well, I want to hear everything and yet you're asking to take it on faith that you attorneys are going to give us what we need, when you haven't heard the case yet, so it's fair heartburn to have. But what I'm trying to elicit is whether you are all open to the idea of limiting yourself to what you get, okay." (Emphases added.)

A fourth prospective juror, who had been on a jury that acquitted a defendant, joined the discussion. The prosecutor asked her not to discuss the facts of the case, but asked,

"Okay. I guess for right now, what I need to know is if the State—based on what you get, if the State does not prove this case to you beyond a reasonable doubt, are you going to be able to vote not guilty again or are you going to say you know, I bet there's something else out there they couldn't give us and so I'm going to vote guilty, even if they didn't prove it, just to be safe? "[Prospective Juror]: I just—there has to be a lot there to prove that he's guilty or not. "[Prosecutor]: Absolutely. And you're going to hold the State to its burden? "[Prospective Juror]: Yeah."

At various other points during voir dire, the prosecutor referenced the State's burden of proof. When a prospective juror mentioned her sister-in-law was murdered, the prosecutor said,

"[W]e're going to talk a little bit about the burden of proof being on the State, beyond a reasonable doubt, wherever that level is for you, on the State, are you going to bring it down a little bit, make it easier for a conviction because of what happened to your sister-in-law?"

He solicited her agreement that she would "still make us prove the case." The prosecutor had a similar exchange with other prospective jurors who had family or acquaintances victimized by violent crimes. And when the prosecutor turned his attention to one who responded earlier to a question from the judge about religious beliefs and the ability to serve as a juror, and asked whether he could serve on a criminal jury, the prospective juror responded: "I think so, I just had—the evidence has to be proven." The prosecutor replied,

284 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

"Absolutely, yeah. And by none of the questions that I ask while I'm up here do I mean to indicate that the burden is not there and it's not on the State or anything like that. But if the State proves to you beyond a reasonable doubt that the defendant committed one or more of these crimes, can you vote guilty?"

After the jury was selected and the evidence was in, the district court instructed the jury that "[t]he State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty, unless you are convinced from the evidence that he is guilty."

Standard of review

"'In considering a claim of prosecutorial error, [the court] follow[s] a two-step analysis. [It] first determine[s] whether an error occurred. Second, if an error has been found, [it] evaluate[s] the prejudice [the error] caused to determine whether it was harmless. At the first step, error occurs if the appellate court determines the prosecutor's actions or statements "fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial." A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation.' [Citations omitted.]" State v. Patterson, 311 Kan. 59, 70, 455 P.3d 792 (2020).

Discussion

Davis argues the prosecutor's comment that jurors should not "hold it against either side for something that [they] didn't get" was error because "[i]t is improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof." State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010). He contends the prosecutor effectively told the jury not to hold the absence of evidence against the State. To determine if the comment was improper, the voir dire record must be viewed in its entirety. See State v. Robinson, 303 Kan. 11, 272, 363 P.3d 875 (2015) (prosecutor's question whether jurors could acquit if State did "horrible job" presenting case did not imply lower burden of proof when voir dire record revealed prosecutor was trying to ex- pose bias that might have been present from case's extensive media publicity), disapproved on other grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017); State v. Blansett, 309 Kan. 401, 414-15, 435 P.3d 1136 (2019) (prosecutor's comment that defense could have introduced recordings of defendant's police interview did not attempt VOL. 312 SUPREME COURT OF KANSAS 285

State v. Davis to shift burden of proof because, when viewed in context, comments were a response to defense suggestion that State was hiding defense- friendly evidence from jury and did not suggest defendant bore burden to disprove case). Mentioning the defense's ability to present evidence has been held proper when the commentary's purpose is to rebut a defense suggestion the State has omitted evidence necessary to corroborate its case. See State v. Pribble, 304 Kan. 824, 837, 375 P.3d 966 (2016); Blansett, 309 Kan. at 414-15. But burden shifting has occurred when the State implies defendant must produce evidence of innocence, such as in State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004), when the State advocated conviction by rhetorically asking the jury whether there was any evidence the events described by the victim "didn't happen . . . ." The prosecutor's remark here did not advocate shifting the burden of proof to defendant, given its context. The prosecutor's phrasing—that the jury may not hold "something [it] didn't get" against either side—may have been inartful. But if the State's proof on any element was lacking, the jury was bound by the court's instructions to hold that absence of evidence against the State. See Miller v. State, 298 Kan. 921, Syl. ¶ 5, 318 P.3d 155 (2014) ("In Kansas criminal proceedings, the State has the burden to prove the accused's guilt beyond a reasonable doubt. To satisfy that burden, the State must prove each required element of the charged crime."). The prosecutor's extended dialogues with prospective jurors reflect he was trying to make the point that the jury would have to base its verdict on the evidence presented in court, not that it should refuse to hold against the State the absence of prosecution evidence necessary to prove the crime. The prosecutor explicitly reiterated during the exchange that he was "trying to elicit . . . whether you are all open to the idea of limiting yourself to what you get . . . ." These statements do not amount to burden shifting.

NO CUMULATIVE ERROR

Given our disposition on Davis' claims, there is no cumulative error. See State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018).

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State v. Davis

JAIL TIME CREDIT

Davis argues the district court erred in the sentencing journal entry when it declined to apply 599 days of jail credit to his sentence, contrary to what he believes the court ordered at the sentencing hearing. Davis points to when the court commented that it would "order that you receive credit towards your sentence for all the time you've spent in custody in this case." The court did not elaborate. In the written journal entry, the court noted Davis was in custody for 599 days in the Sedgwick County jail, from October 24, 2016, until sentencing on June 15, 2018. The journal entry did not award any credit for this, explaining: "From 10/24/16 to 6/15/18, defendant was also held on 16CR3100. As this case is consecutive to 16CR3100, defendant is not eligible for duplicate credit in 16CR3114." The journal entry reflected the "Sentence Begins Date" as "[t]o be determined." Davis contends this resulted in an illegal sentence because, in his view, it conflicts with the sentence pronounced from the bench. We disagree. "'Sentencing in a criminal proceeding takes place when the trial court pronounces the sentence from the bench.' Once a legal sentence has been pronounced from the bench, the sentencing court loses subject matter jurisdiction to modify that sentence except to correct arithmetic or clerical errors. [Citations omitted.]" State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014); see also K.S.A. 2019 Supp. 21-6820(i) (allowing sentencing court to retain power to correct any arithmetic or clerical errors).

Under Kansas law,

"In any criminal action in which the defendant is convicted, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment. Such date shall be established to reflect and shall be computed as an al- lowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the secretary of cor- VOL. 312 SUPREME COURT OF KANSAS 287

State v. Davis rections are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system." K.S.A. 2019 Supp. 21-6615(a).

Before 2011, substantively identical language was codified at K.S.A. 21-4614. In discussing that statute, the court has said,

"Under Kansas law, a judge who sentences a defendant to confinement is required to grant credit for the time which the defendant spent incarcerated pending the disposition of his or her case. 'The provisions of K.S.A. 21-4614 are mandatory and require that a criminal defendant sentenced to incarceration be given credit for all time spent in custody solely on the charge for which he is being sentenced.' [Citations omitted.]" State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003).

The court has also held "K.S.A. 21-4614 contains no provision for credit in excess of the time an individual is actually incarcerated in jail." State v. Lofton, 272 Kan. 216, 217-18, 32 P.3d 711 (2001). Accordingly, when consecutive sentences are imposed for multiple crimes the defendant's time in custody can only be awarded against one of the sentences. In Lofton, the court applied this rule to hold that when a defendant was convicted of two crimes in a single case, and consecutive sentences were ordered, the defendant was not entitled to have each sentence reduced by the full amount of time he spent in jail pending the charges. 272 Kan. at 218. And the Court of Ap- peals has applied this rule to hold that if consecutive sentences are imposed in separate cases, the defendant is still only entitled to a single day of jail time credit for each day spent in jail—that "'[j]ail credit awarded in two cases for the same dates can only be counted once when sentences are run consecutively.'" State v. Molina, No. 98,244, 2008 WL 4222917, at *5 (Kan. App. 2008) (unpublished opinion) (quoting another unpublished Court of Appeals' decision in Worrell v. State, No. 97,611, 2008 WL 762514, at *2 [Kan. App. 2008] [unpublished opinion]). Within this legal framework, there is a problem with Davis' argument. The court's oral pronouncement arguably was ambiguous because it qualified its jail-credit order to time spent "in custody in this case." There is a legal standard governing jail credit— credit in a case is given for time spent in custody "solely on the charge." 288 SUPREME COURT OF KANSAS VOL. 312

State v. Davis

Davis' journal entry indicates the 599 days were awarded as jail credit against another case's sentence, to which the sentence in this case would run consecutive. Nothing suggests this is not true. And under the rule in Lofton and Molina no jail credit may be awarded against the sentence in this case because it has already been "used up" in the prior case. Nothing in the record demonstrates the journal entry is inconsistent with either the court's oral pronouncement or Kansas law. We hold there was no error.

Affirmed.

BEIER, J., not participating. 1 MICHAEL E. WARD, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,871 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

VOL. 312 SUPREME COURT OF KANSAS 289

State v. Bowser

No. 120,350

STATE OF KANSAS, Appellee, v. CHARLES D. BOWSER, Appellant.

474 P.3d 744

SYLLABUS BY THE COURT

1. JUDGES—Asserting Violation of Judicial Canon 2—Proof of Bias or Prej- udice by Litigant. A litigant must prove bias or prejudice from the district court when asserting the judge violated Kansas Judicial Canon 2, Rule 2.3 (2020 Kan. S. Ct. R. 449).

2. SAME—Judges' Duty to Be Neutral—Error to Advocate for Either Party. District court judges must fulfill their duties in a neutral manner. A district court judge errs by becoming an advocate for one party or another during plea negotiations. Merely emphasizing the potential benefits of a plea offer does not, however, constitute advocacy.

3. TRIAL—Ambiguous Jury Question—Reasonable Interpretation by Court. When the jury asks an ambiguous jury question and the district court chooses one of two reasonable interpretations, there can be no abuse of discretion.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opin- ion filed October 23, 2020. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, of the same office, was with her on the brief for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Following several robberies in Kansas City, Missouri, and Kansas City, Kansas, the State charged Charles D. Bowser, Cecil Meggerson, and Dyron King with multiple counts of criminal conduct. Concerned with several allegedly incriminating statements made by Bowser while incarcerated, both Megger- son and King severed their trial from Bowser's. Ultimately, a jury convicted Bowser of 10 counts of criminal conduct, including the attempted capital murder of Deputy Scott Wood. The district court sentenced Bowser to a hard 25 sentence for Deputy Wood's shooting, plus an additional 455 months for the other criminal offenses. 290 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser

Bowser directly appeals to this court, pursuant to K.S.A. 2019 Supp. 22-3601(b). Finding a single harmless error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

We previously considered King's appeal in State v. King, 308 Kan. 16, 417 P.3d 1073 (2018). We laid out the key facts as follows:

"Don's Market and Liquors robbery

"On the evening of February 27, 2015, three men wearing black clothing and brandishing guns entered Don's Market and Liquors at 3000 Southwest Boulevard, Kansas City, Missouri. The cashier noticed one of the men was armed with a revolver and another carried a semiautomatic handgun with 'a longer magazine.' The man with the revolver—wearing a white mask and a pair of black and white gloves—came around the counter and demanded money. The cashier emptied the cash from the register into a plastic sack. The robbers then demanded the cashier's wallet, but when he was unable to locate it, he was pushed to the ground. The robbers left with the plastic sack, various types of liquor, cartons of cigarettes, and lottery tickets. "The store's surveillance cameras showed the man with the white mask was also wearing black and white batting gloves and gray 'boot style' shoes. Another robber was carrying a 'MAC-11 style' semiautomatic gun with an extended magazine. This suspect wore a mask and Nike shoes with a distinctive yellow or white toe pattern. The third robber was wearing all black and carrying a revolver with a wood handle. Surveillance video from a nearby business showed the three suspects exit the store and get in a black four-door sedan with no front license plate. "Family Dollar robbery "Around 8:45 p.m. on March 3, 2015, Patricia Pope was working as a cashier at the Family Dollar located at 1225 Quindaro, Kansas City, Kansas. Reginald Jones was a customer in the store at the time. Pope was restocking the shelves when she noticed Jones make his way to the front register to pay for his items. As she walked to the front to help Jones, a taller man with a handgun came through the front door wearing black clothing, a mask, and gloves. The suspect approached Jones and pointed the gun at him. While this was occurring, two other individuals who were wearing dark clothing entered the store. "The taller suspect spoke to Jones, but Pope could not make out what was said. He then struck Jones in the forehead with the handgun, and Jones fell to the ground, bleeding heavily. While on the ground, Jones was told to give up his keys and billfold. Jones tossed them his keys and said to take his car. But the robbers eventually left the store without taking the keys. "After striking Jones, the taller suspect grabbed Pope and pushed her toward the counter. Once behind the counter, the man used a tool to pry open the cash register. He emptied the contents of the drawer into a store trash can and then repeated the same process at another cash register. VOL. 312 SUPREME COURT OF KANSAS 291

State v. Bowser

"While the taller man was prying open the drawers, another robber shoved Pope to the ground near the store's safe, demanding she open it. When Pope said she could not open it, the man fired two shots near her, one hitting the ground by her leg. Pope repeated that she was unable to open the safe, so he fired a third shot over her shoulder next to her face. The robbers left the store with the contents of the cash registers and some Newport cigarettes from behind the counter. "Pope noticed the taller suspect had on blue 'workman's boots or workman's shoes.' Pope told a responding officer she could tell all three suspects were black males, but she later testified at trial that she could not discern their race. The store's surveillance video revealed one of the men was wearing a hoodie with a large gold eagle on the back. Another suspect wore black and white gloves and had a MAC-style semiautomatic handgun with an extended magazine. All three suspects had a firearm, one of which was a revolver with a wood handle. In addition to the surveillance video, investigators recovered two shell casings and a bullet from the store. "Shamrock robbery "Shortly after 10 p.m. on March 3, 2015, three armed men dressed in black robbed a Shamrock gas station at 8505 Woodland Avenue in Kansas City, Mis- souri. Brenden Foxworthy and Dustin Paquet were working the evening shift. Both Foxworthy and Paquet described one of the robbers as taller than the others. The taller robber, who was wearing a black mask covering his entire face, ordered Foxworthy to open the registers and safe. Foxworthy opened the registers, but when he was unable to open the safe, he was struck several times on top of his head with a gun. Foxworthy fell to the ground where he remained until the suspects left. "Paquet observed one of the suspects was carrying a handgun with an extended magazine. All three robbers concealed their faces with either a mask, scarf, or hoodie. At some point before Foxworthy was struck, a shot was fired. After the suspects had left the store, Foxworthy heard shots being fired in the parking lot. "Surveillance footage showed the tallest robber was wearing all black clothing and wielding a semiautomatic handgun with an extended magazine. He was wearing black and white batting gloves and a gray boot style shoe. The second suspect was dressed in all black and wore a mask with a University of Missouri Tiger's logo. He had on two-tone gray gloves and was carrying a revolver with a wood handle. The last suspect wore a black hoodie with a distinctive gold eagle design on the back and a pair of gloves with a faded yellow logo. He also wore Nike shoes with a unique yellow and white toe pattern. "Foxworthy and Paquet told officers that the suspects took money and bottles of Patron. Video surveillance showed the robbers also took bottles of Rémy Martin, 1800 Tequila, and other bottles of tequila. Officers recovered several bullet shell casings from the parking lot. "Kicks 66 robbery "Around 12:45 a.m. on March 4, 2015, three masked men robbed a Kicks 66 gas station at the corner of 79th Street and Wornall Road in Kansas City, Missouri. Dannella Villa, the general manager, was training Derrick Brining that 292 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser night. Villa saw three armed men dressed in dark clothing with their faces covered run through the front door. All three men were armed with handguns. Villa noticed one of the men had a mask with some sort of design. She described the height of the robbers as 'one tall, one medium, and one short.' "When they entered the store, Villa and Brining dropped to the ground, and Villa pressed the store's panic button. The tallest suspect and the medium-height suspect approached Villa and demanded money. One of the men came around the counter, and the other jumped over while firing gunshots. After opening one of the cash registers, Villa tried to open another but struggled to do so. The medium-height suspect used his pistol to hit her twice on the top of her head and once on her face. While striking Villa, he said, 'I'm gonna kill you, bitch.' Villa fell to the ground, acting as though she was unconscious. "While they were behind the counter, the robbers tried to intimidate Villa and Brining by firing several shots near them. The robbers also tried to get Brin- ing to open the safe, but because it was his first night on the job, he did not know how. Brining was struck several times with the butt of a gun. The robbers fired gunshots at the safe, trying to open it, and one of the bullets ricocheted off of the safe and struck Brining in the knuckle. They eventually abandoned their attempt to shoot open the safe, opting to ransack the store before leaving with the money from the registers. "Villa saw enough of the tall and medium robbers' skin to discern they were black. The store's video surveillance cameras showed one of the robbers wore a distinctive gray boot style shoe and was wearing black and white Easton batting gloves. Another robber was carrying a revolver with a wood handle, had on two- toned black and gray gloves, and was wearing a mask with a University of Mis- souri logo. The third robber was wearing a jacket with a gold eagle emblem on the back. "While entering the store, one of the suspects used a section of picket fence to prop open the door. Officers later discovered the section of fence was taken from a privacy fence located behind the gas station. While examining the fence behind the store, officers discovered a pack of Newport cigarettes and a knotted section of black t-shirt. Officers also recovered numerous bullet fragments and empty shell casings from the gas station. "7-Eleven robbery "The final robbery occurred at the 7-Eleven convenience store located at 4331 Shawnee Drive in Kansas City, Kansas. In the early morning hours of March 4, 2015, Dan Bayer was the only person working the overnight shift. Around 1 a.m., Officer Scott Wood with the Wyandotte County Sheriff's Office came into the store. Officer Wood had just finished his work shift and stopped at the gas station on his way home. He was still in uniform and wearing his gun. After selecting some items, Officer Wood went to the checkout counter, where he struck up a conversation with Bayer. "The robbery began as the two were leaning on the counter and talking— Bayer facing the front door and Officer Wood facing away from the door. Three armed men dressed in black and wearing masks entered the store. They held their guns in the air, announced it was a robbery, and ordered Officer Wood to lie down on the ground. Bayer observed one of assailants was 'noticeably taller' than VOL. 312 SUPREME COURT OF KANSAS 293

State v. Bowser the others. Before Officer Wood went to the ground, he was able to catch a glimpse of the men. He also described one of the men as 'a bit stockier than the other two and a little bit taller.' "One of the men came over the counter, grabbed Bayer's arm, and hit him in the head. Another suspect came around the counter while the other positioned himself over Officer Wood. The men ordered Bayer to open the cash register, and after he had done so, they had Bayer place the money in a bag. Bayer was then ordered to hand over his wallet, but when the suspects discovered there was no money in it, they returned it to Bayer. Bayer was then ordered to withdraw money from the store's safe. Bayer withdrew $60 and gave it to them. Two of the suspects wrestled the drawer out of the second register. "As two of the robbers dealt with Bayer, Officer Wood was lying on his stomach with his hands spread out in front of him. The third suspect held a knee to his back and told him that if he moved or tried anything, they would shoot and kill him. The man patted him down. Officer Wood tried to conceal his gun with his jacket, but to no avail; the suspect discovered the gun and tried to wrestle it from the holster. Unable to free the gun, the robber became frustrated and hit Officer Wood in the back of his head with an object, causing Officer Wood to bleed. The holster strap eventually broke, and the suspect removed the gun. He also took Officer Wood's knife and wallet, which contained cash. "At this point, multiple gunshots were fired. Bayer could not tell which suspect fired the shots. Officer Wood later testified he could tell based on his training that a revolver and a semiautomatic handgun were being fired at the same time. Officer Wood first felt a pain in his jaw, and his mouth began to fill up with blood. He then felt pain in his right shoulder, left chest, and left abdomen. "Once the suspects fled the store, Officer Wood—who had remained conscious—radioed dispatch to report that he had been shot. Shortly thereafter, he lost consciousness. The treating trauma surgeon later testified that Officer Wood suffered gunshot wounds to his jaw, left and right shoulders, left chest, and right side of his neck. Officer Wood survived and testified at trial. His gun was later recovered in Clay County, Missouri. "The store's video surveillance revealed the shooter used a revolver with a wood handle. One of the robbers wore black and white Easton batting gloves; another wore dark gloves with a gold band; and the last suspect had on two-toned gloves. One robber wore gray boot style shoes. "Investigation "The initial lead came from Kansas City, Missouri, police officers who were able to lift a fingerprint from the pack of Newport cigarettes recovered from behind the Kicks 66. The print belonged to a young black male, Dyron King. Also located on the box of cigarettes was a State of Kansas tax stamp that was affixed by a distribution company. A detective working with the distribution company was able to determine from a code on the stamp that the box was distributed to a group of vendors in the Kansas City, Kansas, area, which included the Family Dollar located at 1225 Quindaro. "Shortly after discovering the fingerprint, an investigator obtained the GPS location of King's cell phone. That evening, Kansas City, Kansas, and Kansas City, Missouri, officers—as well as various tactical response teams—arrived at 294 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser

838 North 83rd Terrace in Kansas City, Kansas. When they knocked on the front door, King's mother answered, and one of the officers saw King in the front room of the home. Shortly thereafter, officers discovered two other young black males—Charles Bowser and Cecil Meggerson—in the home. All three were arrested. "Officers obtained a search warrant for the home. In King's downstairs bedroom, officers located three handguns, including a .357 magnum revolver on the bed. The revolver had a wood handle with a gold emblem. Behind a ceiling tile, officers found a bag containing a large amount of cash resting next to a MAC- style gun with an extended magazine. Resting on the floor were empty coin wrap- pers; a pair of blue and gray Nike boot style shoes, one with a drop of blood on it; an 'improvised mask' that looked to be made from the sleeve of a t-shirt with a University of Missouri logo on it; and various liquor bottles, including Patron and Rémy Martin. A black hoodie, black pants, and a black jacket were also recovered from the bedroom. "Also in King's bedroom were the keys to a black Lincoln sedan that was parked in front of the house. Officers later learned the car belonged to Bowser. Inside the vehicle, officers recovered a pair of black and white Easton batting gloves; a pair of black gloves with a yellow stripe; a pair of two-toned gloves; a pair of black gloves; a bottle of Rémy Martin; a box of .357 bullets; and another 'impromptu mask' that appeared to be made from a t-shirt. "Officers obtained a warrant to search Bowser's residence in Kansas City, Missouri. There they found a bottle of Patron in a dresser that also contained mail addressed to Bowser. Officers also located a coin wrapper behind a couch and a shirt matching the description of a shirt worn in the robbery of Don's Market and Liquors. "When officers booked Meggerson into jail, they took into evidence the clothing he was wearing, which included a pair of black Nike Air Max shoes. They also collected Meggerson's Nokia cellphone, which contained four photographs of Meggerson holding a bottle of Patron and a bottle of 1800 Tequila. The timestamps on the photos indicated they were taken at 11:50 p.m. on March 3, 2015. "Meggerson's cell phone contained text messages between him and 'Dyron.' One of the messages stated, 'I need them 357,' which was sent on March 4. A detective testified that he believed '357' referred to the .357 magnum revolver that was recovered from King's bedroom. Another text message from Dyron on February 28 stated, 'Don't take it yet. We about to get money. Then we take it when we get a good L.' The phone's call log indicated Dyron called Meggerson's phone three times on March 3, 2015. "In addition to Meggerson's phone, officers collected an LG cell phone from the living room floor at 838 North 83rd Terrace, and yet another cell phone was collected, though the record is unclear where it was found. An FBI special agent was able to determine one of the phones connected to the cellphone tower nearest the Family Dollar at 8:39 p.m. on March 3, 2015. The Family Dollar robbery occurred around 8:45 p.m. that day. The same agent also determined Megger- son's phone connected to the two cell phone towers nearest the Shamrock 10 VOL. 312 SUPREME COURT OF KANSAS 295

State v. Bowser times between 9:53 p.m. and 9:59 p.m. The Shamrock robbery occurred shortly after 10 p.m. "After listening to jailhouse phone calls made by Meggerson, officers obtained a warrant to search his girlfriend's apartment. There they found a shoebox containing a wallet with Meggerson's identification. Also in the shoebox were several items such as earrings, necklaces, and sunglasses with the price tags still attached. "During the course of the investigation, detectives obtained a DNA search warrant for all three suspects. DNA analysis from blood found on two spots from inside and outside the black and white Easton batting gloves revealed a mixture of a major and minor contributors. King was found to be the major contributor to both. Among three contributors to the DNA found inside the black and gray gloves found in the sedan, Meggerson's DNA was determined to be the major contributor. Of the four contributors to the DNA found in the black and yellow gloves, Bowser was the major contributor. Bowser was found to be the major contributor to three stains found on the University of Missouri mask. And Bow- ser was the major DNA contributor to the knotted fabric found behind the Kicks 66 gas station. King was found to be the major contributor of DNA located inside the blue and gray Nike boot style shoe. The blood found on the exterior of the shoe belonged to Foxworthy. "Swabbings from the revolver found in King's room revealed blood in one of the cylinder pin housings. The major DNA profile matched that of Officer Wood's to the probability of 1 in 520 octillion individuals. A firearms examiner compared shell casings recovered from the 7-Eleven, Family Dollar, and Sham- rock robberies and was able to determine they were all fired from the same gun. "Investigators recovered footprints from the Kicks 66 gas station which were left behind on a 5-hour Energy box and a folded piece of paper. A forensic specialist determined the impression on the 5-hour Energy box could have been made by the blue and gray Nike boot style shoe recovered from King's bedroom. The same specialist deduced the black Nike Air Max shoes recovered from Meg- gerson could have made the impression on the folded piece of paper. "While King was incarcerated at the Wyandotte County jail awaiting trial, he made statements to two different detention officers. On one occasion, a detention officer told King he could not leave his cell during a health and welfare check because the facility was on lockdown. King became agitated and started yelling at the officer, calling him a liar. When the detention officer told King there was nothing he could do about it, the officer walked to another cell. The officer testified he could still hear King tell another inmate, 'I know that bitch is just lying to try and mess with me and he's pissed off that I shot one of his buddies and now he wants to get his.' "Officer Jonathan Cortes testified about the second statement, which allegedly occurred over an intercom system used by officers and inmates to communicate with each other. King demanded access to a phone so he could speak with a sergeant. According to Officer Cortes, when he denied the requests, King yelled over the intercom that 'he gets the phone and the sergeant . . . whenever he want[s] to because he shot a policeman and that [the officers] fear[ ] him.' Officer Cortes claimed over the next two hours, King repeated multiple times that the 296 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser officer was just mad because King 'shot [his] boy.' Officer Cortes also testified King said 'he was gonna beat [his] ass and shoot [him].'" 308 Kan. at 17-26.

Originally, the State charged Meggerson, King, and Bowser as codefendants in the 7-Eleven robbery. Concerned with allegedly incriminating statements made by Bowser while incarcerated, Meggerson and King severed their trials and the State pursued two cases—Meggerson and King together, and Bowser independently. The evidence presented by the State in both trials was substantially the same. Where the evidence differed, we have sup- plemented the facts below. At the conclusion of Bowser's trial, the jury convicted Bowser of attempted capital murder of Deputy Scott Wood, aggravated robbery of Patricia Pope, attempted aggravated robbery of Re- ginald Jones, aggravated robbery of Deputy Scott Wood, aggravated robbery of Daniel Bayer, aggravated battery of Deputy Scott Wood, aggravated battery of Daniel Bayer, conspiracy to commit aggravated robbery, criminal possession of a weapon on March 3, 2015, and criminal possession of a weapon on March 4, 2015.

DISCUSSION

Plea Negotiations

Bowser first alleges the district court impermissibly participated in plea negotiations and imposed consecutive sentences as "the product of judicial vindictiveness" when Bowser rejected a plea offer. Before jury selection, the district court discussed a rejected plea offer with the parties and noted the State offered a 35- year plea deal, but Bowser declined. The judge explained to Bowser the possibility that, if convicted, he would receive a hard 25 sentence plus an additional 228 months. The judge had previously sentenced Meggerson and King to consecutive sentences. Further, the judge indicated he did not know what Bowser's defense would be, but he knew "what the State's evidence [was] because [he] presided over" the other trial. While Bowser's mother was en route to the courthouse, the judge again entreated Bowser and commented on Bowser's young age and "opportunity to basically have a life" after release. During this conversation, the judge noted several times that the decision was VOL. 312 SUPREME COURT OF KANSAS 297

State v. Bowser ultimately Bowser's to make. Obviously, Bowser chose to continue with his jury trial. At sentencing, Bowser's attorney requested all counts run concurrent to the attempted capital murder conviction and Bowser receive no more than a hard 25 sentence. The State requested a hard 25 sentence for the attempted capital murder conviction, plus a series of concurrent and consecutive sentences totaling an additional 455 months. The district court followed the State's recommendations. We recently distinguished between "judicial comment error" and "judicial misconduct" and explained their respective standards of review.

"For decades, we have held: 'The party alleging judicial misconduct bears the burden of establishing that misconduct occurred and that the misconduct prejudiced the party's substantial rights.' And we have reviewed judicial comments that are not jury instructions under this generic judicial misconduct standard. But today, we clarify that an erroneous judicial comment made in front of the jury that is not a jury instruction or legal ruling will, from now on, be reviewed as 'judicial comment error' under the Chapman constitutional harmlessness test. See Chapman, 386 U.S. at 24. That means the party benefitting from judicial comment error has the burden to 'prove[ ] beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., prove[ ] there is no reasonable possibility that the error affected the verdict,' as with prosecutorial error. Importantly, our holding today is limited to judicial comment error; we do not disturb our existing precedent concerning structural error or other kinds of error traditionally labeled 'judicial misconduct.' [Citations omitted.]" State v. Boothby, 310 Kan. 619, 625, 448 P.3d 416 (2019).

Bowser makes a traditional judicial misconduct claim because he alleges the judge abandoned his neutrality and advocated for the plea arrangement. The conduct at issue did not occur in front of a jury. As such, if misconduct is found, Bowser must demonstrate prejudice in order to win a reversal. State v. Lemmie, 311 Kan. 439, 450, 462 P.3d 161 (2020). Bowser asserts the district court violated Kansas Judicial Canon 2, Rule 2.3, concerning "Bias, Prejudice, and Harassment." (2020 Kan. S. Ct. R. 449.) It reads in relevant part:

"(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. "(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not 298 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, soci- oeconomic status, or political affiliation, and shall not permit court staff, court officials, or other subject to the judge's direction and control to do so." (2020 Kan. S. Ct. R. 449.)

At its core, Bowser argues the district court abandoned its neutral role and actively advocated for him to accept the plea deal demonstrating bias and prejudice against Bowser. Examining the record, we are concerned with some of the district court's language. The district court did implore Bowser to consider the consequences of losing at trial and the implications on the remainder of Bowser's life:

"THE COURT: I want to be sure, sir, that you understand. Let's assume for argument's sake that you're convicted of everything that you're charged with. You understand that the punishment for the attempted capital murder is what we call a life sentence. That breaks down into what they call a hard 25, which means you would have to do every[]day of the 25 years— . . . . "The second count, which would be the . . . aggravated robbery, if you were convicted of that crime, the—for class B, that's 228 months. The State would ask for and I have previously sentenced your co-defendants to consecutive sentencing for all the crimes they've—were convicted of committing. . . . . "Which means, sir, I'm not sure that you're gonna be able to get out of prison in your lifetime. You're gonna be a very old man. I don't—I have no idea what motivates you, sir, and I—I don't pretend to know, but you are a young black man. The plea deal offers you a life or realistic life and I want to be sure that you understand that."

Later, the district court again emphatically urged Bowser to consider the ramifications of a guilty verdict:

"I'm going to reiterate some of the things that I've previously said and that is, number one, how old you are now and how old you would probably be if you were convicted on all counts. This plea deal gives you an opportunity to basically have a life."

District court judges must fulfill their duties in a neutral manner. See Kansas Judicial Canon 2, Rule 2.3 (2020 Kan. S. Ct. R. 449). A district court judge errs by becoming an advocate for one party or another during plea negotiations. Merely emphasizing the potential benefits of a plea offer does not, however, constitute ad- VOL. 312 SUPREME COURT OF KANSAS 299

State v. Bowser vocacy. Here, we are not convinced that the district court's repeated emphasis on the benefits of the plea offer to Bowser constituted advocacy on behalf of one party or the other. While the district court may have come close to the advocacy line, we cannot say that it was crossed. Although the district court displayed a preference that Bowser accept the plea offer, the record reveals the district court judge was genuinely concerned for Bowser's wellbeing. The judge appeared concerned that Bowser did not fully appreciate the gravity of his situation and explained he knew the State's case because he presided over King and Meggerson's trial. The district court went out of its way to provide Bowser additional time to contemplate the plea offer and repeatedly asked Bowser if the court or his attorney could answer additional questions. While Bowser also suggests his sentence may have been the product of judicial vindictiveness, he offers no support for this claim and we cannot find any in the record. We conclude the district court did not abandon its neutrality and did not commit error.

Prosecutorial Error Claims

Next, Bowser claims that several times during closing arguments the prosecutor stated facts not in evidence, constituting reversible error. Specifically, Bowser points us to the following statements from the State's closing arguments:

"Mr. Bowser, his DNA was found on the tore up, made up, makeshift mask. Not found at his house, but found in the middle of a street within two miles of a robbery. Mr. Bowser's jeans that he wore in custody were seen on multiple surveillance videos. The stitching on the side, the red label. Mr. Bowser's DNA was found inside the yellow and the black glove. I believe the testimony was it was more than 26 cotillion [sic]. He's the only possibility of the person who was wearing this glove as a major donor. "There is no doubt that Mr. Bowser was a part of this team. There is no doubt that Mr. Bowser owned this vehicle, the same Lincoln LS that was seen at the robberies, the same Lincoln LS that the gloves were found at, the same Lin- coln LS that the liquor bottles w[ere] found in, the same Lincoln LS that was not found at his house, but was found at his co-defendant's house. Why? Because they were a team. They rode together, they drove together, and they robbed together. . . . . "That's not good enough, let's look at the glove because after he finished wearing the gray hood[ie], he switched out and put on the hood[ie] with the eagle. 300 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser

But he put on the same glove, the same glove with the gold around the wrist and the gold in the middle. And you see the gun in his hand, the same glove that only one person on Earth could possibly have that DNA. That's Mr. Bowser's glove. . . . . "Well maybe it was [D'Andre] Harris. [D'Andre] Harris had a gun. [D'An- dre] Harris was arrested. You heard both the Kansas City, Missouri trooper as well as the detective here in KCK. He said, I saw him. I talked to him. I investigated and then I ruled him off. But if that's not good enough, you heard the DNA expert who testified on multiple occasions that she tested Mr. Harris' DNA as well and the only place that his DNA came up was on the gun that he had. It wa[s]n't on the liquor, wa[s]n't on the gloves." (Emphases added.)

And then in rebuttal:

"What I'm gonna say is what we know is not circumstantial. It's DNA. DNA is not circumstantial evidence. And there has been nothing offered to say why his DNA is found on the very things that he concedes apparently that his friends were involved in. And the only reason that he's here is because of his friends per his counsel. Who your friends are has consequences. But his friends' DNA was not the only ones found. His was. His car was seen. He was in the video." (Em- phasis added.)

Bowser alleges these statements were error because (1) Bow- ser's jeans were not seen in "multiple surveillance videos"; (2) the State implied only Bowser's DNA appeared on the gold-trimmed glove; (3) Bowser's Lincoln LS was only seen on the Don's Market and Liquors (Don's Liquors) video; and (4) the prosecutor argued that Harris' DNA was only found on the gun, but Harris could not be excluded as a contributor to the DNA recovered from the Kicks 66 cloth mask. Bowser claims these inaccuracies fell outside the latitude afforded prosecutors and unfairly bolstered the State's case.

"To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). VOL. 312 SUPREME COURT OF KANSAS 301

State v. Bowser

See also State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019). We will consider each of Bowser's objections in turn. First, Bowser argues the State committed error when it commented that Bowser's jeans appeared on "multiple surveillance videos." Re- viewing the trial exhibits, we hold this statement fairly represented the evidence. Police arrested Bowser wearing True Religion brand jeans, and the record contains several photographs. Further, De- tective Taylor's timeline, admitted as Exhibit 541, is a digital crime scene summary which permits the user to search for evidence and produces a result highlighting the times and locations that evidence was seen or used in the robberies. The "Jeans" entry produces two results: (1) the Don's Liquors robbery and (2) the Shamrock gas station robbery. The Don's Liquors robbery entry includes two photos. The first is a screenshot from surveillance "Camera #4," dated and timestamped "2/27/2015 PM 7:05:38.19." The second depicts Bowser's jeans upon his arrest and the same jeans depicted in several exhibits. The security footage screenshot shows one suspect wearing dark blue jeans with a bright white seam that extends only half-way down the pant leg. The jeans police recovered from Bowser upon his arrest have the same bright white seam extending only halfway down the leg. Similarly, the Shamrock gas station entry includes two juxta- posed photographs. The first is a security camera screenshot from "Camera 4" dated and timestamped "03-04-2015 Wed 03:56:45." The suspect mid-frame is bending over and a white tag with a red outline is visible on the back of the individual's right pant leg at waist level. The second photograph depicts the back right section of Bowser's jeans, where a red-bordered white tag is present above the back right jean pocket. Another admitted photograph displays the inside of Bowser's jeans and a red stitching outline is clearly visible in the same area. The jury viewed uncut surveillance footage from Don's Liq- uors and the Shamrock gas station. The jeans in each video contained the bright white seam extending halfway down the pant leg and the red-bordered white tag—and Bowser's jeans contained both features and are the same color. Using the photographs in 302 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser evidence, Detective Taylor's timeline tool, and the raw surveillance footage, a reasonable juror easily could have concluded the jeans depicted in the Don's Liquors robbery and the Shamrock gas station robbery were the same pair recovered from Bowser when police arrested him. As a result, the State did not err when it stated Bowser's jeans were in "multiple surveillance videos." Next, Bowser argues the DNA from at least three other individuals was present on the glove with gold or yellow trim. How- ever, Bowser mischaracterizes the State's comments. The prosecutor noted Bowser was the only major DNA donor and this was a reasonable inference from the facts in evidence:

"Mr. Bowser's DNA was found inside the yellow and the black glove. I believe the testimony was it was more than 26 cotillion [sic]. He's the only possibility of the person who was wearing this glove as a major donor. . . . . "That's not good enough, let's look at the glove because after he finished wearing the gray hood[ie], he switched out and put on the hood[ie] with the eagle. But he put on the same glove, the same glove with the gold around the wrist and the gold in the middle. And you see the gun in his hand, the same glove that only one person on Earth could possibly have that DNA. That's Mr. Bowser's glove." (Emphasis added.)

In rebuttal, the State again emphasized Bowser was the glove's major DNA donor; not the only donor:

"I told you what he's gonna say. It was all somebody else. One hand, it was other peoples' DNA as well [in the glove], though they were the minor [contributors]. You heard the expert. Don't leave your common sense at the door. He was the major [contributor]. No reason on why his DNA is found on the glove. . . . Nothing talking about it was a big coincidence, no. Didn't say it wa[s]n't his DNA, but just said also don't forget about Mr. Harris. He may have did it, too." (Emphases added.)

These statements were consistent with the testimony of DNA expert, Forensic Biologist Jennifer McMurray:

"So the first sample I tested was from the inner wrist of the black and yellow glove . . . . And I developed a mixture with one major contributor and at least three minor contributors and here the major profile matched Charles Bowser. The minor profile was not suitable for comparisons." (Emphasis added.)

The prosecutor's statements properly summarized this evidence and explained Bowser contributed the glove's major DNA profile. This was not error. VOL. 312 SUPREME COURT OF KANSAS 303

State v. Bowser

Third, Bowser claims the State asserted Harris' DNA only appeared on Deputy Wood's service pistol, but Harris could not be excluded as a DNA contributor on the Kicks 66 cloth mask. The defense theory suggested Harris, not Bowser, committed the robberies with Meggerson and King. The theory's lynchpin centered on Deputy Wood's service pistol. Testimony established Missouri Highway Patrol Officer Joseph Hall stopped Harris, searched Har- ris' vehicle after smelling marijuana, and discovered Deputy Wood's Glock Model 22 service pistol.

Forensic Biologist Jennifer McMurray tested the pistol:

"I tested swabs from the trigger and a swab from the grip from his weapon and the swab from the trigger had DNA from one major contributor and at least three minor contributors on it. The major profile matched D'Andre Harris and the minor profile was not suitable for comparisons. . . . . "So the swab from the grip, I also developed a mixture with one major contributor and at least three minor contributors and, again, the major profile matched D'Andre Harris and the minor profile was not suitable for comparisons."

McMurray also tested the cloth face mask with an "MU logo" recovered from the Kicks 66 robbery. She tested four stains and "developed a mixture with one major contributor and at least one minor contributor." McMurray testified the Stain A major profile matched Bowser and the minor profile excluded King, Megger- son, Brenden Foxworthy, Dannella Villa, Derrick Brining, Re- ginald Jones, Scott Wood, and Daniel Bayer. She listed Harris "as a possible minor contributor." (Emphasis added.) Similarly, Stain B had at least three contributors, with suitable comparison sam- ples for Bowser and Meggerson. Results were inconclusive if Har- ris was a contributor. Stain C showed one major, matching Bow- ser, and two minor contributors. The first minor profile matched King, and the second was inconclusive. The final stain, Stain D, had one major and a minimum of three minor contributors. Bow- ser again matched the major contributor, but "the minor was not suitable for comparison." In anticipation of Bowser's closing argument, the State commented during its closing:

"Well, maybe it was Mr. Harris. Mr. Harris had a gun. Mr. Harris was arrested. You heard both the Kansas City, Missouri trooper as well as the detective 304 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser here in KCK. He said, I saw him. I talked to him. I investigated and then I ruled him off. But if that's not good enough, you heard the DNA expert who testified on multiple occasions that she tested Mr. Harris' DNA as well and the only place that his DNA came up was on the gun that he had. It wa[s]n't on the liquor [bottles], wa[s]n't on the gloves." (Emphasis added.)

The prosecutor's statement properly explained the DNA evidence. McMurray testified she tested the pistol, Harris' DNA matched the major profile of the first swab, and the minor profile could not be compared. The second swab yielded the same result. Harris' was the only DNA recovered from Deputy Wood's service pistol. Bowser matched the mask's major profiles for all four stains. Meggerson matched a major contributor for Stain B. King was a minor contributor for Stain C. Harris was listed "as a possible mi- nor contributor" for Stain A and "inconclusive" for Stains B and C. This means McMurray did not find Harris' DNA on the mask— only that his DNA was a possible contributor. The State referenced that McMurray's testing could only conclusively link Har- ris' DNA to the pistol. The prosecutor's statement was correct, and we are convinced this statement was not error. Finally, Bowser argues the prosecutor incorrectly stated that Bowser's Lincoln LS "was seen at all the robberies." The prosecutor said:

"There is no doubt that Mr. Bowser was a part of this team. There is no doubt that Mr. Bowser owned this vehicle, the same Lincoln LS that was seen at the robberies, the same Lincoln LS that the gloves were found at, the same Lin- coln LS that the liquor bottles was found in, the same Lincoln LS that was not found at his house, but was found at his co-defendant's house. Why? Because they were a team. They rode together, they drove together, and they robbed together." (Emphasis added.)

The State agrees this was error and recognizes the prosecutor should only have specified the Lincoln LS could be placed at Don's Liquors. In light of the strength of the evidence, the State suggests this error was harmless and reversal is not required because "the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record.'" Sherman, 305 Kan. at 109. Here, the State has met its burden to demonstrate the error did not affect the trial's outcome beyond a reasonable doubt. See King, VOL. 312 SUPREME COURT OF KANSAS 305

State v. Bowser

308 Kan. at 35. The trial evidence included 62 witnesses and 600 exhibits, and the State connected Bowser to the robberies with DNA evidence, recovered stolen items from Bowser's vehicle, and video surveillance depicting Bowser's clothing. Police recovered a firearm containing Deputy Wood's DNA and firearms depicted in the surveillance videos from King's house, where Bowser was arrested. This large body of evidence shows that a jury would have convicted Bowser absent the prosecutor's statement. As in King, this single erroneous statement was a "minor aberration" stem- ming from a complex and "prolonged trial." See 308 Kan. at 36. It is true that a mere volume of evidence cannot be our only consideration. King, 308 Kan. at 35. In addition to overwhelming evidence, we are convinced this particular statement was harmless because, in addition to overwhelming evidence, this stray mis- statement of fact was cured by other correct evidence. See State v. Thurber, 308 Kan. 140, 170, 420 P.3d 389 (2018). Most importantly, the jury possessed State's Exhibit 541—the interactive timeline tool—which displayed the proper place Bowser's vehicle was seen. The entry for "2005 Lincoln LS" links to a single result—the Don's Liquors robbery. The prosecutor's statement was erroneous, but that error did not prejudice Bowser's trial. Bowser has also attempted to claim an "imaginary script" prosecutorial error. But while the State's brief engages the merits of this claim, Bowser's amended brief does not. Arguments not adequately briefed are waived, and we decline to reach the merits on a claim not briefed or argued. State v. Pewenofkit, 307 Kan. 730, Syl. ¶ 2, 415 P.3d 398 (2018) ("[A] point raised incidentally in a brief and not argued therein is also deemed abandoned.").

Ambiguous Jury Question

Bowser asserts that the district court erred in its response to a jury question. The State pursued an aiding-and-abetting theory at trial. Jury Instruction No. 10 listed the elements of Attempt to Commit Capital Murder:

"1. That the defendant or another for whose conduct he was criminally responsible performed an overt act toward the commission of capital murder.

"2. That the defendant or another for whose conduct he was criminally responsible did so with the intent to commit capital murder. 306 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser

"3. That the defendant or another for whose conduct he was criminally responsible failed to complete commission of capital murder.

"4. This act occurred on or about the 4th day of March, 2015, in Wyandotte County, Kansas." (Emphases added.)

The district court received a jury question during deliberations, which asked, "Instruction No. 10, define whose conduct he was criminally responsible." The district court opined to the parties it was "constrained, first of all, to answer the question" and could "only go by the evidence presented by the State and that the answer to the question would be co-defendants Cecil Meggerson and Dyron King, period, nothing more, nothing less." When the district court received the question, it believed the foreperson ac- cidentally excluded the word "for." The district court examined the question and read it aloud to counsel while the jury remained in the jury room:

"I will read the question into the record: Instruction No. 10, define whose conduct he was criminally responsible for. He didn't say for, but he's obviously asking." (Emphasis added.) After the jury returned, the judge stated: "We are in receipt of your question and I'm gonna read this into the record: 'Instruction No. 10, define whose conduct he was criminally responsible'. . . . The only way I can answer that question is by giving you the two names of the two co-defendants and that would be Cecil Meggerson and Dyron King, period. No, sir, [you] can't ask me anything else unless you put it in writing and date it."

Bowser provides two rationales why the district court's response was error. First, Bowser points to Instruction No. 10, which did not include the word "for," but read "whose conduct he was criminally responsible." Bowser believes this is a significant difference and suggests that the inclusion of "for" transformed the district court's interpretation from "'define 'whose conduct he was criminally responsible'" to "'identify whose conduct he was criminally responsible for.'" Bowser speculates the reason the jury foreperson attempted to ask another question was to correct this misunderstanding and argues this response was a mistake of both fact and law and was an abuse of discretion. Second, Bowser claims the district court's answer invaded the province of the jury by directly telling the jury that Bowser was criminally responsible for Meggerson and King. Bowser believes VOL. 312 SUPREME COURT OF KANSAS 307

State v. Bowser this error amounted to a directed verdict of guilt if the jury concluded either King or Meggerson committed any criminal offense. K.S.A. 2019 Supp. 22-3420(d) requires jury questions be "signed, dated and submitted in writing to the bailiff." The district court must "notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response." K.S.A. 2019 Supp. 22-3420(d). That response must be given "in open court or in writing." K.S.A. 2019 Supp. 22-3420(d). When examining error we consider "a district court's response to a mid- deliberation jury question . . . for abuse of discretion." State v. Lewis, 299 Kan. 828, 856, 326 P.3d 387 (2014) (quoting State v. Novotny, 297 Kan. 1174, 1186, 307 P.3d 1278 [2013]). We must ask:

"'[T]o the extent that it is necessary to determine whether the district court's response was a correct statement of the law, we are presented with a legal question, subject to unlimited review. But when looking at which legally appropriate response the court should have made, we accord the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.'" (Emphasis added.) Lewis, 299 Kan. at 856 (citing State v. Wade, 295 Kan. 916, 921, 287 P.3d 237 [2012]).

A district court abuses its discretion if its decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Bowser, as the party claiming the error, bears the burden of showing the district court abused its discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018). If the district court's response was an abuse of discretion, we must determine if it was clearly erroneous. Lewis, 299 Kan. at 856. A judicial action is clearly erroneous "'"if the reviewing court is firmly convinced that the jury would have reached a different verdict had the error not occurred."'" State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). We agree with Bowser the jury instruction was ambiguous. The question's vague phrasing lends to two reasonable interpretations. A reader could interpret the question as the district court did here—a request to identify the individuals by name with whom Bowser could potentially share criminal liability—King and Meg- gerson. Alternatively, a reader could interpret the question as a 308 SUPREME COURT OF KANSAS VOL. 312

State v. Bowser request for an explanation of the legal aiding-and-abetting concept "whose conduct he was criminally responsible." That the question has two reasonable interpretations answers Bowser's claim. The district court adopted one of these two reasonable interpretations and therefore did not abuse its discretion. Although Bowser shades the district court's response as a direct invitation to convict him, the district court's interpretation was reasonable and well within the deference provided judges in answering jury questions. See Lewis, 299 Kan. at 856. The district court's reply did not invade the jury's province but informed the jury the identities of the two parties the State theorized Bowser assisted in the commission of the various crimes, which would aid the jury in understanding the State's aiding-and-abetting theory. We also note Bowser's attorney discussed the district court's response and his only concern was the district court should include Harris along- side King and Meggerson. Bowser's suggestion now that the jury foreperson attempted to correct the district court, but the district court prevented him from doing so, actually cuts against Bowser. After the foreperson attempted to ask another question or comment, the district court quickly cut him off and instructed him to provide additional questions in writing, pursuant to K.S.A. 2019 Supp. 22-3420(d). How- ever, the jury never returned with a follow-up during its multiple- day deliberations. We infer from the absence of another question the district court's response adequately answered the jury's question, and Bowser's assertion otherwise is conjecture. Bowser has failed to show the district court's response exceeded the deference provided judges when answering jury questions. See 299 Kan. at 856. As such, we hold the district court's response was not an abuse of discretion.

Cumulative Error

Finally, Bowser argues cumulative error denied him a fair trial. "The test for cumulative error is '"whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant."'" 304 Kan. at 457-58. Having found only VOL. 312 SUPREME COURT OF KANSAS 309

State v. Bowser one harmless error here, there can be no cumulative error. State v. Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014) ("Nor may a single error constitute cumulative error.").

Affirmed.

BEIER, J., not participating.1 PATRICK D. MCANANY, Senior Judge, assigned.2

1REPORTER'S NOTE: Justice Beier heard oral arguments but did not partic- ipate in the final decision in case No. 120,350. Justice Beier retired effective September 18, 2020.

2REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No. 120,350 under the authority vested in the Supreme Court by K.S.A. 20- 2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

310 SUPREME COURT OF KANSAS VOL. 312

In re Fuller

No. 122,638

In the Matter of JAMES W. FULLER, Respondent.

474 P.3d 776

ORIGINAL PROCEEDING IN DISCIPLINE

ATTORNEY AND CLIENT—Disciplinary Proceeding—Indefinite Suspen- sion.

Original proceeding in discipline. Opinion filed October 30, 2020. Indefi- nite suspension.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the formal complaint for the petitioner.

James W. Fuller, respondent, argued the cause pro se.

PER CURIAM: This is an attorney discipline proceeding against James W. Fuller, of Independence, Missouri. Respondent was admitted to practice law in the state of Kansas on April 7, 2017. On January 2, 2020, the Disciplinary Administrator's office filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). That same day, the Disciplinary Admin- istrator's office filed a notice of hearing, confirming that a hearing on the formal complaint was scheduled for February 20, 2020. On February 20, 2020, three hours before the hearing, the respondent filed an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 20, 2020, where the respondent appeared pro se. The hearing panel determined respondent violated Kansas Supreme Court Rule 208 (2020 Kan. S. Ct. R. 247) (registration), KRPC 1.1 (2020 Kan. S. Ct. R. 291) (competence), KRPC 1.3 (2020 Kan. S. Ct. R. 295) (diligence), KRPC 1.4 (2020 Kan. S. Ct. R. 296) (communication), KRPC 1.7 (2020 Kan. S. Ct. R. 306) (conflict of interest), KRPC 1.16 (2020 Kan. S. Ct. R. 340) (terminating representation), KRPC 5.5 (2020 Kan. S. Ct. R. 374) (unauthorized practice of law), and KRPC 8.4 (2020 Kan. S. Ct. R. 394) (professional misconduct). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact

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"7. The hearing panel finds the following facts, by clear and convincing evidence: "8. James W. Fuller (hereinafter 'the respondent') is an attorney at law, Kansas attorney registration number 27305. His last registration address with the clerk of the appellate courts of Kansas is 3101 N. Osage Street, Independence, Missouri 64050. "9. The respondent graduated from the University of Kansas, School of Law in May, 2016. The respondent took the Kansas bar in July, 2016. The respondent failed the bar examination. The respondent took the bar again in February, 2017, and passed the examination. On April 7, 2017, the Kansas Su- preme Court admitted the respondent to the practice of law. "10. At the time of his admission to the practice of law, the respondent had been working as a law clerk for the Law Offices of Heath A. Stuart in Olathe, Kansas. Following his admission, Mr. Stuart extended an offer of employment to the respondent as an associate attorney. The respondent accepted the position and remained in that position until the events which lead to the instant disciplinary case. "11. During law school, utilizing the student health services, the respondent obtained a prescription for Adderall. Following graduation, the respondent no longer had access to health services and began purchasing Adderall illegally. In- itially, he purchased Adderall from E.R., the respondent's friend. During the summer of 2017, the respondent met C.M. After the respondent learned that E.R. was purchasing the Adderall from C.M., the respondent began purchasing the Adderall illegally directly from C.M. "12. In February, 2018, C.M. was charged with harassment by a telephonic device, a class A misdemeanor, in the Leawood Municipal Court. C.M. asked the respondent to represent him. The respondent requested a $1,500 retainer. C.M. failed to pay the retainer or sign an employment agreement. "13. The night before C.M.'s first appearance, C.M. contacted the respondent to discuss the case. C.M. implied that the respondent had to represent C.M. or C.M. would use the respondent's illegal use of Adderall purchases against the respondent. The respondent was not sure how C.M. would use the information, but he believed that C.M. would use the information to harm the respondent. The respondent did not know whether C.M. planned 'to use the information as lever- age in securing a better deal with the city prosecutor, inform the police, or simply to contact the KS Bar as a way to "punish" [the respondent] for not helping him out.' As a result, the respondent agreed to represent C.M. On March 28, 2018, the respondent entered his appearance on behalf of C.M. "14. In February, 2018, the respondent began using methamphetamine as a substitute for Adderall. According to the respondent, methamphetamine 'was more readily available, much cheaper and allowed [him] to work long hours from home while saving [the] adderall [sic] for the day and work week.' During this time period, the respondent was also using marijuana. "15. The respondent accepted Adderall and methamphetamine from C.M. in lieu of the payment of attorney fees. 312 SUPREME COURT OF KANSAS VOL. 312

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"16. On May 22, 2018, the respondent failed to appear in court on behalf of A.W. The court issued a warrant for A.W.'s arrest. On June 18, 2018, A.W. was taken into custody. That same day, A.W. called Mr. Stuart and informed him that the respondent failed to appear on her behalf, leading to her arrest. The respondent did not inform A.W. that he would not be attending the hearing. During that hearing, the court issued a warrant for A.W.'s arrest. "17. On June 19, 2018, the respondent sent Mr. Stuart a text message. In the text message, the respondent told Mr. Stuart that he was preparing a letter of resignation and that he would need to self-report misconduct to the disciplinary administrator's office. The respondent also stated, 'it's just all become too much and I can no longer effectively represent clients in my opinion.' "18. In reaction to the respondent's text message and because A.W. contacted Mr. Stuart after she was arrested on the warrant, Mr. Stuart conducted an investigation of the respondent's files and the computer. When Mr. Stuart reviewed the respondent's file he maintained for the representation of A.W., he saw that the respondent recorded A.W.'s May 22, 2018, court date in the file. The respondent failed to put the appearance on the firm's master calendar. During Mr. Stuart's investigation of the respondent's files, he discovered that the respondent failed to appear on behalf of two other clients, including C.M. "19. When Mr. Stuart reviewed the respondent's computer, he discovered programs and applications that he was not familiar with. One of the programs that Mr. Stuart was not familiar with was called My SMS. My SMS is a text message application for computers. The respondent used his office computer to communicate with his clients by text message. My SMS recorded the respondent's text messages made on both his mobile phone as well as his office computer. When Mr. Stuart reviewed the text messages, Mr. Stuart discovered that the respondent was trading legal representation for illegal drugs with C.M. By way of example, the following are excerpts from the text conversation between the respondent and C.M.: '[By the respondent] Need I remind you that I'm your friend first and fore- most. Your lawyer seconds [sic] and your customer third lol [April 26, 2018 1:43 p.m.]' 'I got the cash if you have a little of that other stuff weaning down [April 26, 2018 1:44 p.m.]' '[By C.M.] I have a bit [April 26, 2018 1:46 p.m.]' '[By the respondent] Well I can swing by soonish if it works for you and if you need some groceries or some extra cash or something for a little bit just let me know man I'm here for ya [April 26, 2018 1:53 p.m.]' 'just at the KCK Courthouse for the next 35 minutes or so [April 26, 2018 1:53 p.m.]' '[By C.M.] Cool . [sic] Swing by after [April 26, 2018 1:53 p.m.]' . . . . '[By the respondent] Oh and if [E.R.] makes his way over there could you throw him some extra of that other stuff for me? That will likely settle us up for all but the trial or plea hearing itself in Leawood. [May 16, 2018 4:05 a.m.]' '[By the respondent] just depends on what all's there ads [sic] work too obviously. Oh and btw your buddy is running out of time to get that clean. 4 weeks VOL. 312 SUPREME COURT OF KANSAS 313

In re Fuller in already so means only two weeks left of the half supply. [May 16, 2018 4:07 a.m.]' 'just throwing it out there man not to bug you brosef [May 16, 2018, 4:07 a.m.]' '[By C.M.] Yes. I'll send it with [E.R.] He just showed up and woke me up. [May 16, 2018, 4:08 a.m.]' 'What would you like . [sic] [May 16, 2018, 4:08 a.m.]' '[By the respondent] Ads and like a gram or like we did last time if you can. That would settle us up pretty well [May 16, 2018, 4:09 a.m.]' . . . . '[By the respondent] Wanted to get with you re: the other thing and brakes guy [May 18, 2018, 5:22 p.m.]' '[By the respondent] Hey I am going to want that g. Offer still on the table? [May 18, 2018, 8:30 p.m.]' '[By C.M.] Yes [May 18, 2018, 8:30 p.m.]' '[By the respondent] I'll throw you something for it but gonna have to be tomorrow. On my own principles [May 18, 2018, 8:30 p.m.]' . . . . '[By the respondent] Can I do a stop and go please? Super bad day and have cash [May 22, 2018, 9:16 a.m.]' '[By C.M.] Certainly [May 22, 2018, 9:18 a.m.]' '[By the respondent] Ok I'm leaving here right now. Thank you. [May 22, 2018, 9:20 a.m.]' '[By C.M.] Yup [May 22, 2018, 9:23 a.m.]' '[By the respondent] Hey man I wanted to see if I could buy a bit more for the long weekend. [May 24, 2018, 1:29 p.m.]' 'Home girl joined in the fun. Good problem to have [May 24, 2018, 1:30 p.m.]' '[By C.M.] Yup [May 24, 2018, 1:45 p.m.]' '[By the respondent] Cool beans. I am going to a hearing in KCK and will give you a buzz when I'm out of there and headed your way like me [sic] around 3:15. And I am off the rest of the day so if you wanted to kick it and play some FIFA let me know I'll pick up some beer or something [May 24, 2018, 2:03 p.m.]' . . . . '[By the respondent] Why don't we say that extra 0.7 you needed to grab from my Friday purchase? [June 2, 2018, 11:40 p.m.]' 'No need to drop it off now and this officially wipes your trial debt for Lenexa [June 2, 2018, 11:41 p.m.]' 'Fair? . . . [June 2, 2018, 11:42 p.m.]' "20. On June 26, 2018, the respondent sent the disciplinary administrator a short letter, self-reporting misconduct. In the letter, the respondent stated: 'Please accept this letter as my self-report of a violation of the Model Rules. I traded legal services for an illegal and unlawful substance with one of my clients.' That same day, Mr. Stuart also filed a complaint against the respondent. Mr. Stuart provided detailed and background information to the circumstances which gave rise to the respondent's self-report. 314 SUPREME COURT OF KANSAS VOL. 312

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"21. On July 24, 2018, the respondent provided supplemental information. In the letter, the respondent asserted that he stopped using Adderall and methamphetamine 'cold turkey' on June 15, 2018, and experienced serious withdrawal symptoms during the weekend that followed. The respondent also stated 'I have not used methamphetamine or adderall [sic] at all since June 15, 2018.' However, during the hearing on the formal complaint, the respondent stated that he had relapsed after one week of treatment. Despite the respondent's statements in his July 24, 2018, letter and his testimony during the hearing on the formal complaint, the timing of the respondent's treatment and relapse are unclear. The respondent's self-report letter was dated June 26, 2018. However, the respondent testified that he believed he self-reported 'shortly before June 15th.' During his testimony, the respondent tied the timing of his self-report to his treatment: 'Q. [By Mr. Hazlett] Because I think I recall seeing at some point that you indicated that you had been drug free since June 15th of 2018? 'A. [By the respondent] I believe it would have been right around that time. I believe I had self-reported, 'um, shortly before June 15th, which would have put me one week later. June 15 would have been when my treatment started. I— I believe—I believe that's the case.' The respondent testified that the treatment program was 11 weeks long and that he started either the first or the third week of June, 2018. In the self-report, the respondent did not aver that he was in treatment at that time. Further, the respondent did not present any other evidence as to participation in or completion of drug treatment. "22. Also in the July 24, 2018, letter, the respondent stated that he retained John Ambrosio to represent him in the disciplinary proceeding. Mr. Ambrosio withdrew from the representation on September 25, 2019. "23. During 2019, the Supreme Court established an online attorney registration system. Several email messages were sent to all attorneys notifying the attorneys of the new system. At the hearing on the formal complaint, the respondent confirmed that the clerk's office had the respondent's current email address and that he received the email messages sent by the clerk's office. Despite the many notifications, the respondent failed to pay the annual registration fee, due June 30, 2019. After the deadline to pay the annual registration fee passed, additional email messages were sent to the respondent regarding his obligation to pay the registration fee and the late fee. The respondent failed to do so. Fur- ther, the respondent failed to complete the continuing legal education as well as pay the CLE fee. "24. On October 8, 2019, the Supreme Court issued an order suspending the respondent's license to practice law for failing to comply with the annual requirements to maintain a law license. Because the respondent failed to update attorney registration with his current address, the order of suspension was sent to an old address and the order was returned to sender. The respondent's license to practice law remains suspended. "25. Following October 8, 2019, and despite the Supreme Court's order of suspension, the respondent engaged in the unauthorized practice of law. VOL. 312 SUPREME COURT OF KANSAS 315

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a. On October 16, 2019, the respondent appeared with E.R. in John- son County District Court case number 19CR1588, for a 'no go prelim hearing.' b. On December 10, 2019, the respondent appeared with E.R. for a bond review hearing. That same day, E.R. tested positive for 'meth and ben- zos.' c. On December 12, 2019, the respondent appeared with E.R. for a plea hearing. E.R. entered a plea of guilty to violating K.S.A. 21-5709(e)(3), possession of drug paraphernalia. d. On December 6 and 10, 2019, the respondent communicated with the attorney prosecuting the case against E.R. by email and calling himself, 'Attorney for [E.R.]'. "26. Despite his knowledge that in order to maintain a law license, an attorney must comply with the annual registration requirements, including the completion of 12 hours of CLE and despite his knowledge that he failed to comply with the annual registration requirements, the respondent alleged that he did not know that his license was suspended until he received a copy of the formal complaint in the instant case. The respondent's assertions in this regard are, at best, disingenuous. "27. The respondent filed an answer to the formal complaint the morning of the hearing on the formal complaint, February 20, 2020. "Conclusions of Law "28. The respondent stipulated that he violated all of the rules alleged in the formal complaint. Based on the respondent's stipulations and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated Kan. Sup. Ct. R. 208 (registration), KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.7 (conflict of interest), KRPC 1.16 (terminating representation), KRPC 5.5 (unauthorized practice of law), and KRPC 8.4 (professional misconduct), as detailed below. "Kan. Sup. Ct. R. 208 "29. Kan. Sup. Ct. R. 208(n) provides: 'Change of Address and Contact Information. A registered attorney must notify the Office of Judicial Administration no later than 30 days after a change of legal name, residential address, business address, email address, business telephone number, residence/personal telephone number, liability insurer, or trust account information.' The respondent moved from his address in Grandview, Missouri, and failed to inform attorney registration of his new address. As a result of the respondent's failure to inform attorney registration of his new address, cor- respondence including a copy of the order of suspension, was mailed to an address which was no longer valid. The respondent stipulated that he violated Kan. Sup. Ct. R. 208. As such, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 208. "KRPC 1.1 316 SUPREME COURT OF KANSAS VOL. 312

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"30. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The respondent failed to exercise the requisite thoroughness and preparation for his representation of A.W., C.M., and one other client, when he failed to appear in court on their behalf at scheduled hearings. Further, the respondent failed to exercise the legal knowledge, skill, thoroughness, and preparation when he represented E.R. at a time when the respondent's license to practice law was suspended. Further, the respondent stipulated that he violated KRPC 1.1. Accord- ingly, the hearing panel concludes that the respondent violated KRPC 1.1. "KRPC 1.3 "31. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent A.W., C.M., and one other client when he failed to appear in court on their behalf for scheduled hearings. The respondent's lack of diligence caused a delay in each of those cases. The respondent stated that he violated KRPC 1.3. Moreover, based on the respondent's stipulation and because the respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concludes that the respondent violated KRPC 1.3 on multiple occasions. "KRPC 1.4 "32. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.' In this case, the respondent violated KRPC 1.4(a) when he failed to keep A.W. reasonably informed about the status of her case. The respondent stipulated that he violated KRPC 1.4. Thus, the hearing panel concludes that the respondent violated KRPC 1.4(a). "KRPC 1.7 "33. KRPC 1.7 provides: '(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . . (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. '(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.' The respondent created a serious conflict of interest in representing C.M. when he accepted illegal drugs in exchange for legal representation and thereby VOL. 312 SUPREME COURT OF KANSAS 317

In re Fuller engaged in felonious conduct with his client. The representation of C.M. was materially limited by a personal interest of the respondent. Obviously, C.M. did not give informed consent, confirmed in writing. Additionally, the respondent created a conflict of interest by purchasing illegal drugs from E.R. and then representing E.R. The representation of E.R. was materially limited by a personal interest of the respondent. Just like with C.M., each time the respondent purchased illegal drugs from E.R., the respondent and E.R. engaged in felonious conduct. The respondent stipulated that he violated KRPC 1.7. The hearing panel concludes that the respondent repeatedly violated KRPC 1.7(a)(2). "KRPC 1.16 "34. Unless otherwise ordered by a court: 'a lawyer shall not represent a client or, where representation has com- menced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law.' KRPC 1.16(a)(1). Because the representation of both C.M. and E.R. resulted in the violation of KRPC 1.7, the respondent was prohibited from representing them. The respondent stipulated that he violated KRPC 1.16. As such, the hearing panel concludes that the respondent violated KRPC 1.16(a)(1). "KRPC 5.5 "35. KRPC 5.5 prohibits the unauthorized practice of law. After the Kansas Supreme Court suspended the respondent's license to practice law, the respondent represented E.R. in the Johnson County District Court. Specifically, the respondent made three court appearances, held himself out as an attorney in corre- spondence, and resolved the criminal case by plea. The respondent stipulated that he violated KRPC 5.5. Accordingly, the hearing panel concludes that the respondent violated KRPC 5.5. "KRPC 8.4(b) "36. 'It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). In this case, the respondent engaged in criminal conduct when he purchased illegal drugs and when he traded legal representation for illegal drugs. Purchasing illegal drugs reflects adversely on the lawyer's fitness as a lawyer in other respects. The respondent stipulated that he violated KRPC 8.4(b). Thus, the hearing panel concludes that the respondent violated KRPC 8.4(b). "KRPC 8.4(d) "37. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to appear in court on behalf of three clients. The respondent stipulated that he violated KRPC 8.4(d). The hearing panel concludes that he violated KRPC 8.4(d). "American Bar Association Standards for Imposing Lawyer Sanctions "38. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for 318 SUPREME COURT OF KANSAS VOL. 312

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Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. "39. Duty Violated. The respondent violated his duty to the public and the legal profession to maintain his personal integrity. Additionally, the respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. "40. Mental State. The respondent knowingly and intentionally violated his duties. "41. Injury. As a result of the respondent's misconduct, the respondent caused actual injury to his clients, to the administration of justice, and to the legal profession. "Aggravating and Mitigating Factors "42. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present: a. Dishonest or Selfish Motive. While the respondent's misconduct did not involve dishonesty, it was selfish. The respondent's misconduct was motivated by his desire to obtain illegal drugs. The respondent acted selfishly when he purchased drugs from his clients, putting them at risk for their felonious conduct. The hearing panel concludes that the respondent's misconduct was motivated by selfishness. b. A Pattern of Misconduct. The respondent did not engage in an isolated instance of misconduct. Rather, the respondent engaged in a pattern of misconduct by repeatedly trading legal representation for illegal drugs, purchasing drugs from his clients, and failing to appear in court on behalf of three clients. c. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated Kan. Sup. Ct. R. 208 (attorney registration), KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.7 (conflict of interest), KRPC 1.16 (termination of representation), KRPC 5.5 (unauthorized practice of law), and KRPC 8.4 (professional misconduct). d. Illegal Conduct, Including that Involving the Use of Controlled Sub- stances. The respondent committed multiple felony crimes when he traded legal representation for illegal drugs and when he purchased illegal drugs from his clients. When the respondent engaged in criminal conduct, his clients also engaged in criminal conduct. The respondent's criminal conduct is a significant aggravating factor. e. Additional Consideration. The respondent did not present any type of plan or details as to how he planned to rehabilitate himself to practice law within the confines of the Kansas Rules of Professional Conduct, the Rules Relating to the Discipline of Attorneys, and the attorney's oath of office. "43. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present: VOL. 312 SUPREME COURT OF KANSAS 319

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a. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined. b. Remorse. At the hearing on this matter, the respondent expressed gen- uine remorse for having engaged in the misconduct. "44. The hearing panel acknowledges that the respondent is inexperienced in the practice of law, having been admitted in 2017. Because the misconduct in this case does not involve the practice of law, the hearing panel concludes that the respondent's inexperience does not mitigate the misconduct. "45. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards: 4.32 'Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.' 4.42 'Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.' 5.12 'Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice.' "Recommendations of the Parties "46. The Disciplinary Administrator recommended that the respondent be indefinitely suspended from the practice of law. The respondent acknowledged that the misconduct warranted a period of suspension. The respondent recommended that his license be suspended for a period of six months. "Recommendation of the Hearing Panel "47. Based on the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent's license to practice law be indefinitely suspended. "48. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see also Supreme Court Rule 211(f) (2020 Kan. S. Ct. R. 254). "Clear and convincing evidence is 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 320 SUPREME COURT OF KANSAS VOL. 312

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505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The respondent was given adequate notice of the formal complaint to which he filed an answer. The respondent was also given adequate notice of the hearing before the panel and the hearing before this court. He did not file exceptions to the hearing panel's final hearing report. As such, the panel's factual findings are deemed admitted. Supreme Court Rule 212(c), (d) (2020 Kan. S. Ct. R. 258). The evidence also supports the panel's conclusions of law. We, therefore, adopt the panel's findings and conclusions. The only remaining issue before us is the appropriate discipline for the respondent's violations. At the hearing before this court, the office of the Disciplinary Administrator recommended that the respondent be indefinitely suspended from the practice of law. The hearing panel unanimously recommended that the respondent's license to practice law be indefinitely suspended. The respondent requested that his license be suspended for a period of six months. This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f). We are certainly aware and sympathetic of the dev- astating consequences of drug dependence and the toll it can take in the lives of people like the respondent. However, we cannot overlook the serious nature of the misconduct underlying the findings in this case, which includes the respondent creating a serious conflict of interest by accepting illegal drugs in exchange for legal representation and thereby engaging in felonious conduct with his client. We therefore adopt the recommendation of both the hearing panel and the Disciplinary Administrator of indefinite suspension.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that James W. Fuller be and he is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2020 Kan. S. Ct. R. 234), effective upon the date of the filing of this opinion.

IT IS FURTHER ORDERED that the respondent comply with Su- preme Court Rule 218 (2020 Kan. S. Ct. R. 265).

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IT IS FURTHER ORDERED that when respondent applies for reinstatement, he shall comply with Supreme Court Rule 219 (2020 Kan. S. Ct. R. 266), including undergoing a reinstatement hearing.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 122,638 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Carol A. Beier.

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In re M.F.

No. 117,301

In the Matter of the Parentage of M.F., By and Through K.L., Appellant, and T.F., Appellee.

475 P.3d 642

SYLLABUS BY THE COURT

1. PARENT AND CHILD—Kansas Parentage Act—Same-Sex Partner May Establish Parentage. The same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23-2208(a)(4) by notoriously recognizing her maternity.

2. SAME—Kansas Parentage Act—Burden on Party to Establish Existence of Presumption under Act—Opposing Party Must Rebut Presumption. A woman who seeks to establish parentage by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) bears the initial burden to demonstrate the existence of the presumption. If she succeeds, the burden shifts to the party opposed to establishment of the mother and child relationship to re- but the presumption by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the presumed parent, or under K.S.A. 2019 Supp. 23-2208(c).

3. SAME—Kansas Parentage Act—Conflicting Parentage Presumptions— Considerations. K.S.A. 2019 Supp. 23-2208(c) provides that, if two conflicting parentage presumptions arise, "the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child" prevails.

4. SAME—Kansas Parentage Act—Rebuttal of Presumption—Burden Shifts to Original Party Seeking Parentage. Under K.S.A. 2019 Supp. 23- 2208(b), if a presumption under K.S.A. 2019 Supp. 23-2208(a)(4) is rebutted, the burden of going forward with evidence shifts back to the party seeking establishment of the parent and child relationship. That party must go forward with the evidence, and the ultimate burden can be discharged by a preponderance of the evidence.

5. SAME—Kansas Parentage Act—Presumption of Maternity under Stat- ute—No Requirement of Written or Oral Agreement. A woman seeking to establish parenthood who relies on the presumption of maternity under K.S.A. 2019 Supp. 23-2208(a)(4) need not show the existence of a written or oral coparenting agreement between her and the birth mother. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child's birth. In addition, in keeping with Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the court must ultimately be persuaded that the birth mother, at VOL. 312 SUPREME COURT OF KANSAS 323

In re M.F.

the time of the child's birth, consented to share her due process right to decision-making about her child's care, custody, and control with the woman who is claiming parentage under the KPA.

6. SAME—Kansas Parentage Act—Establishment of Parent-Child Relation- ship—Evidence. Evidence in support of either party's position in a parentage action brought by a person seeking to establish a parent and child relationship by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) may be direct or circumstantial, testimonial or documentary.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 7, 2019. Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed November 6, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Valerie L. Moore, of The Law Offices of Valerie L. Moore, of Lenexa, argued the cause, and Carolyn Sue Edwards, of Law Offices of Carolyn Sue Ed- wards, P.A., of Wichita, was with her on the briefs for appellant.

Christopher J. Vinduska, of Klenda Austerman LLC, of Wichita, argued the cause, and Alex P. Flores, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This case and In re W.L., 312 Kan. 367 (No. 119,536, this day decided), address whether the same-sex romantic partner of a woman who conceives through artificial insemination and gives birth during the couple's relationship can be recognized as a legal parent under the Kansas Parentage Act (KPA), even if the couple has not entered into a written or oral coparenting agreement. In the district court, the judge ruled that the partner had no parental rights. A panel of our Court of Appeals affirmed that result. In re M.F., No. 117,301, 2019 WL 2399482 (Kan. App. 2019) (unpublished opinion). We accepted the partner's petition for review. We rule that such a partner can be recognized as a legal parent through use of K.S.A. 2019 Supp. 23-2208(a)(4) when the birth mother has consented to shared parenting at the time of the child's birth. We therefore reverse the district court's judgment and the panel decision affirming it; we remand to the district court for further proceedings consistent with this opinion.

324 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

FACTUAL AND PROCEDURAL BACKGROUND

K.L. and T.F. began a romantic relationship shortly after they met in October 2007. They moved in together in the fall of 2008, residing in an Andover home owned by K.L. Before T.F. moved in, she and K.L. opened a joint checking account. Eventually T.F. would testify that the account was set up so that both could use it for household expenses, including mortgage payments and repairs. T.F.'s name was added to the mortgage and deed in January 2009. Very early in the relationship, T.F. told K.L. that she wanted "a lot" of kids. The parties do not dispute that T.F. always wanted children. K.L. would testify that she and T.F. differed about the number of children each wanted, but she agreed to having one child. T.F., on the other hand, would take the position that K.L. never wanted any children. In June 2011, after K.L. lost her job, T.F. added K.L. to her employer-provided medical insurance coverage. K.L. and T.F. submitted affidavits that they were domestic partners and intended to continue their relationship indefinitely. T.F. would testify that she added K.L. to her insurance as a matter of financial necessity, rather than as a statement about the couple's status. In 2012, T.F. began seriously considering using artificial insemination to have a baby, and she and K.L. attended a required pre-insemination session with social worker Renee Cristiano in November 2012. Cristiano's report stated, "[T.F.] believes her family will also support her decision to have [K.L.] appointed as a guardian." It also said that the couple planned "to be co-parents." T.F. would dispute the truth of these two statements in her even- tual testimony. T.F.'s first attempt at artificial insemination was unsuccessful. K.L. was not present for the procedure and was unaware of it until after the fact. T.F. would testify that the decision to undergo artificial insemination "was not a mutual decision. [K.L.] was not supporting the decision. I was doing it alone and I did not want her there. I was going to do this no matter what." The women's testimony also would eventually conflict on how involved K.L. was in donor selection for the second insemination. T.F. paid for the procedure and for other medical expenses, VOL. 312 SUPREME COURT OF KANSAS 325

In re M.F. as well as the session with Cristiano. K.L. was present for the second, successful procedure, and T.F. gave birth to M.F. on October 19, 2013. The couple had not entered into a written coparenting agreement and never did so. At the time of M.F.'s birth K.L.'s last name was used as a second middle name on the baby's birth certificate. T.F. would later testify that she felt pressure from K.L. to use the name, while K.L. would testify that she exerted no pressure on T.F. and was "very happy" when she found out that T.F. had included her name in the baby's. T.F. would later unilaterally drop K.L.'s last name from the baby's name. In late November 2014, T.F. moved out of K.L.'s house and took 13-month-old M.F. with her. K.L. would testify that it was difficult for her to see M.F. after the couple's separation; she attributed the difficulty in part to T.F.'s failure to respond to messages. T.F. eventually told K.L. that she could come to Inman, where T.F. had then settled, to see M.F., but T.F. forbade overnight stays. K.L. would testify that she did not take T.F. up on the offer to visit M.F. in Inman often; by the time she could drive to Inman after work, she said, M.F. would already be in bed. After a while, T.F. would not let K.L. be around M.F. by herself at all, requiring K.L. to be accompanied by her mother. K.L. petitioned to establish parentage in November 2015. In February 2016, the district judge heard three days of evidence. In addition to the testimony already described above, the evidence from K.L. included copies of e-mails between herself and T.F. that were sent from 2007 to 2010 and dealt with the topic of children. When asked on cross-examination why there were no later, similar emails, K.L. said that she and T.F. might have had such discussions in person. K.L. also testified that she and T.F. shared M.F.'s expenses "[f]or the most part" after the couple broke up. She said she "always offered when [she] was at Costco or Walmart, to see if [T.F.] needed anything." T.F. testified that she and K.L. never considered formalizing their relationship with a commitment ceremony, but she also said 326 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

K.L. had asked her "many times" to get married. T.F. always rejected the proposals. T.F. acknowledged that she and K.L. had attended the session with Cristiano but characterized the statements made to and reported by Cristiano as convenient misrepresentations. She said there had been no real discussion of the differences between K.L. and herself about the issue of children because K.L. knew T.F. "needed this lady's approval to go forward [with the insemination]. And I know [K.L.] was afraid of losing me if she didn't do this for me. After we got home from this appointment we had an argument about it all because [K.L.] was like, '[W]e just lied to this lady!'" T.F. denied that K.L. had shared in expenses related to M.F. Rather, when T.F. needed financial assistance to provide for M.F., she obtained it from her father. T.F. provided detailed account statements showing her expenditures for M.F. While the couple was still living together, T.F. said, she and M.F. slept in one bedroom and K.L. in another. T.F. also testified that she was responsible for feeding, bathing, and putting M.F. to bed—sacrificing her social life while K.L. continued hers. T.F. testified that there were multiple factors leading her to leave K.L. They included her "spirituality and sexuality," financial pressures, and concerns about the couple's relationship. T.F. denied that K.L. ever had a mother-child type of relationship with M.F.: "[M.F.] was my daughter, and [K.L.] was a woman I was living with." After T.F. moved out, she began dating the man who is cur- rently her husband. She testified that he would buy diapers and other things for M.F. without being asked. During this time, K.L. continued to try to convince T.F. to come back. T.F. began to question K.L.'s emotional stability and decided it was not in M.F.'s best interests to have overnight visits with her. Other evidence at the hearing described K.L.'s presence at childbirth classes attended by T.F., the couple's decoration of a room in their home in anticipation of the baby's arrival, and a shower given by both women's families. T.F's written birth plan identified K.L. as the baby's "other parent," and K.L. was given a "mother" security bracelet at the hospital. The labor and delivery VOL. 312 SUPREME COURT OF KANSAS 327

In re M.F. nurse testified that she understood K.L., who was present at M.F.'s birth, to be the baby's other intended mother. T.F. had sent K.L. Mother's Day cards "from" M.F., both before and after the baby's birth. The cards referred to K.L. as "Mama K" and "mother." K.L. opened a bank account in the name of the baby with herself listed as a parent, but she never named M.F. as her child or dependent on any other official document until the month before this action was filed. After all of the parties' evidence had been submitted, the district judge ruled from the bench. He first found that T.F. and K.L. had been in a committed same-sex relationship.

"The evidence in this case is overwhelming that they had an approximate seven year relationship, they bought a house together, shared expenses, lived together in an intimate and committed relationship for a period of years. Outside relationships notwithstanding, the evidence in this case overwhelmingly suggested that they had just this type of committed same-sex relationship. Further, the Court puts great weight on this domestic partnership affidavit that sets forth very specific criteria that [T.F.] acknowledged in writing and represented officially to get insurance coverage that she—they had this very type of committed same-sex domestic partnership."

Despite that relationship, the judge said, the women made no joint decision to have children or to raise a child together.

"Regarding the issue as to the joint decision to have children, the Court finds that the weight of evidence in this case suggests to this Court that [T.F.] wanted to have a child, and she wanted to have a child in the worst way, and that she was committed to doing so despite, the Court's belief, the position of her same sex partner. And, therefore, it is the belief of this Court that [T.F.] was going to go ahead with this regardless and that it was not a joint decision. It was a decision in which [K.L.] was consulted and provided some input and advice on, but the ultimate decision to have this child was [T.F.]'s. And the involvement of [K.L.] in this process was either required, or it was a decision after [T.F.] had decided to go ahead and do this, that [K.L.] essentially got on board and then assisted to the extent that she could in this planning and insemination process and during the pregnancy."

After consideration of "conflicting testimony," the judge concluded, "[I]t doesn't appear that the parties really ever had a true meeting of the minds as to a parenting agreement." (Emphases added.)

"Based on the evidence that's been presented in the case, it does appear that [T.F.] took on not only primary parenting responsibility, but overwhelmingly 328 SUPREME COURT OF KANSAS VOL. 312

In re M.F. was the caring parent in the case. Parenting is more than just saying you're a parent, it's actually performing all of those actions that are necessary to raise an infant: feeding, getting up when they're sick, dressing them, bathing them, caring for them, making sure they have appropriate daycare when you can't be with them. These are all things that have to be done by a parent. It appears that the overwhelming evidence in the case is that [K.L.] was there, she was supportive, but the actual hands-on parenting that was done on a day-to-day basis was done overwhelmingly by [T.F.]. Therefore, the Court cannot find that there was actual joint responsibility shared during the year that they lived together. The Court also puts some significance on the fact that unlike the other case decisions, the time that the child was in a family unit home with these two partners was relatively short. Only for a period of about a year before their breakup. "Regarding the—the name in this case, the Court does find that both of these parties names appear[] on the original birth certificate. The explanation to the Court by [T.F.] was that was an accommodation to [K.L.]. But the Court does find some significance in the fact that the name was not hyphenated. In other words, there was never an intention that this child would have a surname that includes the name of both parents. And that's the true meaning in this Court's view of a hyphenated surname, that every time that surname is used both of the parent's names also are used. That's not the case here. In fact, it would appear that [T.F.] never really recognized that [K.L.] was part of this child's name and, frankly, didn't use it. Now, it does appear to the Court that the evidence suggests that [K.L.] did consistently use it whenever she had the opportunity, but [T.F.] did not. Therefore, the Court finds that there is a distinction between the other cases, the appellate cases which this Court considers factors, and this one on the issue of name. Further, the Court does put some significance that when the parties separated that [T.F.] took it upon herself to remove [K.L.] from the birth certificate. I think that's consistent with her view from the beginning that [K.L.] was there as an accommodation to [K.L.] and not because the parties actually intended that to be part of the used name of this child over the long-term. "Regarding the factor as to how this child refers to [K.L.]. Quite frankly, by the time these parties broke up she was just too little to be speaking well enough to call anybody particularly anything that would be credible."

The judge then referenced Frazier vs. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013), which involved a same-sex couple who had entered into two written coparenting agreements concerning children conceived through artificial insemination. In that case

"there was evidence regarding what others such as teachers and daycare providers, how they treated these individuals. [Here,] [t]he Court does find it significant the testimony of the swim instructor and the daycare provider in this case that they dealt almost exclusively with one parent here, [T.F.], and saw [K.L.] only as kind of a—an associate role in the case and not as an active coparent. The Court does put some weight on the fact that these individuals who dealt with the mother of the child, the biological mother of the child, as the one VOL. 312 SUPREME COURT OF KANSAS 329

In re M.F. that made the decisions, the one that was actively involved, the one that got in the water with the child during swimming, and that [K.L.] did not. "Now, the Court notes that in Frazier vs. Goudschaal there was also a proof of purchasing a home and shared bank accounts. As the Court noted earlier that does exist here. There was some co-mingling of responsibility of assets and, of course, it's undeniable that they did attempt to buy a house with one another. That, in the view of the Court, does not really help sort out the relationship of mother/child in this particular case. "Also in Frazier vs. Goudschaal it's the Court's understanding from reading of the case that the parties equally shared parenting responsibilities after breakup. That didn't exist here. What appears to have happened in this case based on the evidence is that when the parties separated [T.F.] took her child, as she saw it, and moved away. Had [K.L.] acted promptly at that time asserting this is my daughter too, you can't do that, the Court might put more weight on her construction of her relationship and role now. But the Court does put some significance on the fact that it was almost a full calendar year before she sought the involvement[] of the courts to enforce what she sees as a parent/child relationship. I do note that she contacted [T.F.] often. That she sought visitation and often exer- cised it. One might see that as being willing to accept the crumbs that [T.F.] would throw her. And I do note that she did exercise whatever contact that was offered with one notable exception and that is the Court sees some significance in the communication which was documented in the record where [T.F.] basically offered, you can come to Inman and see her anytime. Why [K.L.], who claims to be a mother, didn't exercise that opportunity when—when granted and offered, is beyond the Court. I would think that if you really missed that child like a mother would miss an absent child, you would go to Inman because I don't think that that would have been that great of a burden to exercise that kind of— of time with her under those circumstances. If that's what you can get, you go do it. And I don't believe that there was a sufficient explanation in the record as to why she didn't do that other than she really just wanted to see the parenting time, as she saw it, work differently and didn't want to make that concession. "Ultimately it's the Court's role in this case to determine the existence of a mother/child relationship. It is undenied that [K.L.] had a relationship with this little girl. When they lived together I'm sure, as I noted earlier, if you're going to be around her every day I think she's just so sweet you're going to get attached to her. I don't doubt that for a bit. I also recognize this special grandmother-like relationship that [K.L.'s mother] seemed to develop with this child. However, it seems to the Court that [K.L.] can't stack the grandmother's relationship with this child onto hers to create a mother/child relationship." The judge also concluded: "The particular part of the paternity statute which must be proven here is that there was open and notorious demonstrations of parenting by [K.L.]. The Court finds here that the evidence suggests that her assertion of a role as a parent [of] this child were inconsistent, sporadic and incidental. She did not support her in any meaningful way financially. It would appear that [T.F.] was left to bear the entire financial responsibilities for the child both when they were together and after. There's been no offer of child support in a formal sense. Virtually no 330 SUPREME COURT OF KANSAS VOL. 312

In re M.F. proof of expenses that were paid by [K.L.] during the relationship. Again, anything that she did provide appears just to be gifts or incidental. Does not appear to establish a true commitment to use her resources to support a child in the same way that [T.F.] had to make an ongoing commitment to do. And as found earlier, the Court finds that it was [T.F.]'s responsibility starting with breast feeding, which is necessarily focused on her and tends to create more responsibility in one individual rather than the other, and from that time on she was the parenting figure for this child in the home. . . . . "[T]his Court has to be extremely hesitant to impress upon the life of this child a relationship which has not been clearly proven to exist, and the Court does find in this case that the evidence is insufficient for this Court to find a mother/child relationship between [K.L.] and [M.F.] in this case. And, therefore, the Court will deny the request for the Court to declare a mother/child relationship finding that [K.L.] in this case had a passive rather than an active role, finding specifically that she was caring but somewhat distanced from the child on day-to-day parenting responsibilities. That if she considered herself a true parent she would have claimed that the child was hers public[ly] and unequivocally which she did not do under the overall evidence in this case. She would have, in the view of the Court, been happy to name this child as a depend[e]nt or as a beneficiary on any legal document that she has. I note it's significant that on her life insurance she did not mention [M.F.] whatsoever as a daughter, but instead named other people as her beneficiaries. And the Court does believe that she should have acted sooner to enforce rights as a mother in this case if indeed she really did consider herself a mother in this case. ". . . [T]he Court finds that [T.F.] is the sole legal parent of this child and that she'll make the decisions regarding who this child sees and under what conditions she sees them." (Emphasis added.)

The judge's journal entry of judgment ultimately was filed in December 2016. K.L. attempted to appeal his decision but failed to file a timely docketing statement. After dismissal and reinstatement of the appeal, the case came before the Court of Appeals. See In re M.F., 2019 WL 2399482, at *3. K.L.'s brief to that court posed the following series of questions: (1) Was there a "meeting of the minds" to coparent? (2) Was there an open and notorious assertion of parenthood by K.L.? (3) Did T.F. exercise the parental preference doctrine in naming K.L. mother of M.F.? If so, could she change her mind and alter M.F.'s opportunity to have two parents? See 2019 WL 2399482, at *4. T.F.'s brief before the Court of Appeals argued that K.L.'s attempt to establish parentage under a coparenting agreement or the KPA was doomed by the evidence against her, the credibility and VOL. 312 SUPREME COURT OF KANSAS 331

In re M.F. weight of which could not be revisited on appeal. In addition, T.F. asserted, K.L.'s parental preference argument had been abandoned. The panel recognized that the "meeting of the minds" language in K.L.'s first question and in the district judge's decision invited analysis of whether T.F. and K.L. had entered into a contract. Given the undisputed evidence that there was no written coparenting agreement, it treated the issue of the existence of an oral contract as one of pure fact. And it then ruled that, regardless of whether it reviewed the district court decision that there was no oral contract, no "meeting of the minds," under a negative finding or substantial competent evidence standard, K.L. would lose.

"At trial, K.L. did not identify any 'essential elements' of the alleged oral coparenting agreement. Instead, she argued generally that she and T.F. had been 'on the same page' about coparenting and that '[f]or the most part,' they shared M.F.'s expenses before their breakup. T.F. denied K.L.'s allegations that they had agreed to share parenting and caregiving responsibilities, testifying that K.L. 'didn't have any responsibilities with [M.F.]' At another point, when asked if she and K.L. had an 'agreement or arrangement regarding sharing of parental responsibilities for [M.F.],' T.F. replied, 'No.'" 2019 WL 2399482, at *6.

The panel then took up the district judge's conclusion that K.L. had not established a presumption of maternity by what he had termed "open and notorious demonstrations of parenting" of M.F., stating the ruling as "there was not an open and notorious assumption of parenting responsibilities for the child by [K.L.]." It said that it was measuring this ruling against the KPA's provision in K.S.A. 2019 Supp. 23-2208(a)(4), although the district judge had not cited that provision or expressly applied the burden shifting required by K.S.A. 2019 Supp. 23-2208(b).

"We interpret the district court's ruling as a finding that K.L. failed to meet her initial burden of proof to establish by a preponderance of the evidence a presumption of parentage. A district court's finding on whether an individual is a presumed parent under the KPA is a finding of fact. See In re Paternity of E.G.S., No. 108,778, 2013 WL 2972697, at *3 (Kan. App. 2013) (unpublished opinion). . . . . "K.L. does not contend that the district court arbitrarily disregarded undisputed evidence, nor does she argue that the district court was motivated by any extrinsic consideration. Rather, she argues that there was more than sufficient evidence to support her claim that she notoriously asserted her parenthood of M.F. But all of the evidence cited by K.L. was disputed at trial. Essentially, K.L. 332 SUPREME COURT OF KANSAS VOL. 312

In re M.F. asks this court to reweigh the evidence and find that the district court made the wrong decision when it found that she had not notoriously asserted her parenthood. But when reviewing a negative finding, '[a]n appellate court may not nullify a district court's disbelief of evidence, nor may it determine the per- suasiveness of evidence that the district court may have believed.' In re Estate of Rickabaugh, 305 Kan. 921, 935, 390 P.3d 19 (2017). "Even using K.L.'s proffered standard of review, there was sufficient evidence—viewed in the light most favorable to T.F.—to support the district court's finding that K.L. did not notoriously recognize her status as M.F.'s parent. T.F. testified that K.L. seldom went to M.F.'s pediatric appointments or help[ed] pay for them, nor did K.L. help pay for obstetric or gynecological services. T.F. testified that she and K.L. did not represent K.L. to others as M.F.'s parent. This testimony was corroborated by T.F.'s parents and there was evidence that M.F.'s swimming instructor, despite having met K.L., did not understand K.L. to be M.F.'s parent. T.F.'s father testified that he gave money to his daughter several times because K.L. never helped with M.F.'s financial needs. Also, K.L. did not take legal action to assert her parentage until a year after her relationship with T.F. ended, and she filed her case five days after T.F. and [her husband] were married. "To be clear, K.L. presented substantial evidence that if found to be credible by the fact-finder would support her claim that she notoriously represented herself to others as M.F.'s parent. But the district court's decision denying K.L.'s petition reflects that the district court implicitly found T.F.'s testimony more credible than K.L.'s. The trial judge could observe the demeanor of the witnesses and was in the best position to assess their credibility. As we have already stated, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. Gannon, 298 Kan. at 1175-76. Based on our standard of review, K.L. has failed to show that the district court erred in finding that she did not notoriously represent herself to others as M.F.'s parent." (Emphases added.) In re M.F., 2019 WL 2399482, at *7-8.

Finally, the panel declined to address the merits of K.L.'s third issue on the parental preference doctrine, agreeing with T.F. that it had not been properly preserved for appellate review. 2019 WL 2399482, at *8. When K.L. petitioned this court for review, she articulated a single issue for consideration:

"The Court of Appeals found that under the Kansas Parentage Act (KPA) unmarried parties who have children through ART [Assisted Reproductive Tech- nology] and not their own biology are required to show that a contract (either oral or written) existed. Is it inequitable to require a contract to establish parentage for non-married partners under the KPA for children born through ART?"

This court granted review, and both parties submitted supplemental briefs. VOL. 312 SUPREME COURT OF KANSAS 333

In re M.F.

In her supplemental brief, K.L. restated the issues again, asking first whether the panel's requirement of a written coparenting agreement between nonmarried partners who were raising children was an incorrect interpretation of the KPA and caselaw and, second, whether the district judge and the panel erred in concluding that she failed to meet her burden of notoriously or in writing recognizing her parentage of M.F. T.F.'s supplemental brief argued again that an appellate court cannot reweigh evidence and that a negative factual finding by a district judge cannot be overturned on appeal absent arbitrary disregard of undisputed evidence or reliance on an extrinsic consideration such as bias, passion, or prejudice. See State v. Douglas, 309 Kan. 1000, 1002-03, 441 P.3d 1050 (2019). She pointed out that the panel had not required K.L. to demonstrate the existence of a written coparenting agreement. But she urged this court to rule that the KPA nevertheless required either a biological or adoptive connection between a parent and child or a written coparenting agreement similar to those entered into by the parties in the Frazier case. At oral argument before us, counsel for K.L. firmly and finally zeroed in on the single common legal question necessarily underlying several of the varying issue statements and arguments in her appellate briefs and the petition for review: Did the district judge and, later, the Court of Appeals panel apply the correct legal standard to evaluate the evidence under the governing KPA provision, K.S.A. 2019 Supp. 23-2208(a)(4)? She urged us to recognize error below, asserting that the district judge and the panel had demanded more of her than the plain language of the applicable KPA parentage presumption requires. In her view, all she had to demonstrate to meet the initial burden assigned to her by K.S.A. 2019 Supp. 23-2208(b) was her notorious recognition of her maternity of M.F., not "open and notorious demonstrations of parenting," in the district judge's original words, or "open and notorious assumption of parenting responsibilities," as the Court of Appeals described his ruling. On questioning from the court, K.L.'s counsel argued not only that no oral or written coparenting contract was required but also that T.F. did not have to acquiesce in shared parenting with K.L. 334 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

In her view, the presumption provision relied on by K.L. made K.L.'s maternity the legal equal of T.F.'s biological maternity. Each mother was as entitled as the other to the constitutional protection of the due process right to care, custody, and control of M.F. and to the shelter of the parental preference doctrine. K.L. did not have to perform any parental duties particularly well or even completely in order to be afforded treatment as a parent from the time of M.F.'s birth. Indeed, counsel asserted that K.L. had done all that she needed to do to meet the statutory requirement merely by filing her petition to launch this case in district court. T.F.'s counsel initially focused his oral argument on distin- guishing this case from Frazier because of the lack of a coparenting agreement between his client and K.L. He conceded that the district judge appeared to believe that the law already required such an agreement to recognize K.L.'s maternity, and he sought our formal recognition of that interpretation or extension of Fra- zier. When redirected to the language in K.S.A. 2019 Supp. 23- 2208(a)(4) and asked to point out the provision for the agreement requirement he sought, he noted that the provision, enacted in 1985, had not been expected to apply to a same-sex relationship. This, in turn, forced him to acknowledge that K.S.A. 2019 Supp. 23-2220, also enacted in 1985, made KPA provisions applicable to a father and child relationship applicable to a mother and child relationship "insofar as practicable."

DISCUSSION

Before we reach the merits of this case, we pause to address whether K.L.'s briefing and petition for review preserved the issue on which she now desires a ruling—whether the district judge and the Court of Appeals applied the wrong legal standard in evaluating the evidence before them on the K.S.A. 2019 Supp. 23- 2208(a)(4) presumption of maternity she had claimed and any other governing law. See Supreme Court Rule 8.03(b)(6)(C)(i) (2020 Kan. S. Ct. R. 52) (Supreme Court will not consider issue not raised before Court of Appeals or issues not presented, fairly included in petition for review, cross-petition, conditional cross- petition; court may address plain error not presented); Supreme Court Rule 8.03(j)(5) (2020 Kan. S. Ct. R. 52) (Supreme Court VOL. 312 SUPREME COURT OF KANSAS 335

In re M.F. may consider, decide issues decided by district court, presented to but not decided by Court of Appeals). Aside from challenging K.L.'s apparent misunderstanding that the Court of Appeals absolutely required a coparenting agreement, T.F. has not taken explicit issue with the adequacy of K.L.'s issue preservation. She continues to focus instead on the district judge's fact-finding, asserting that the evidence in support of her was ample and appropriately weighed to compel judgment in her favor. On the subject of the governing law, T.F. is more than ready to engage with K.L. As mentioned above, she urges this court to go beyond its earlier statements about K.S.A. 2019 Supp. 23- 2208(a)(4) and to extend the holding of the Frazier case to require proof of the existence of a written coparenting agreement between the parties. Under these circumstances, we are willing to exercise our discretion to consider and decide the merits of the controlling legal issue in this case, overlooking some earlier changeability and lack of clarity in K.L.'s briefs and petition for review. See State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017) (preservation prudential rather than jurisdictional rule). K.L. has always invoked the governing statute in the district court and the Court of Appeals; she has consistently challenged the propriety of the district judge's ruling against her, which, we believe, inevitably demands at least some examination of the legal framework he em- ployed as well as the relevance and sufficiency of the evidence presented under that standard; this case concerns a rapidly developing area with few guideposts in our caselaw; and, finally, T.F. does not invoke lack of preservation to stop us from reaching the merits. See State v. Boeschling, 311 Kan. 124, 128, 458 P.3d 234 (2020) (failure to raise lack of preservation of issue before Court of Appeals waives, abandons preservation as issue on petition for review without cross-petition explicitly raising issue).

Kansas Parentage Act

Unless a child's parentage is governed by the Indian Child Welfare Act, 25 U.S.C. § 1901 (2016) et seq., the KPA applies to parentage actions such as this one. K.S.A. 2019 Supp. 23-2201(b). 336 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

A "'parent and child relationship' means the legal relationship existing between a child and the child's biological or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations." K.S.A. 2019 Supp. 23-2205. The "parent and child relationship" "includes the mother and child relationship and the father and child relationship." K.S.A. 2019 Supp. 23-2205. Further, it "extends to every child and to every parent, regardless of the marital status of the parents." K.S.A. 2019 Supp. 23-2206. In addition to the biological and adoptive relationships explicitly recognized under K.S.A. 2019 Supp. 23-2205, a child conceived through artificial insemination by a consenting husband and wife is "considered at law in all respects the same as a naturally conceived child of the husband and wife so requesting and consenting to the use of such technique." K.S.A. 2019 Supp. 23- 2302. The consent required under the artificial insemination act is a written acknowledgment by both the husband and the wife, as well as the person who performed the insemination procedure. K.S.A. 2019 Supp. 23-2303. The original document may be filed in district court in the same manner as adoption papers. K.S.A. 2019 Supp. 23-2303. Under a strict reading of the artificial insemination act, the procedure would only be available to a married couple, and the consent requires a written document. But our Court of Appeals has long held that a man may be estopped from relying on the lack of a written document to avoid paternity, and unmarried birth mothers have been permitted to use the procedure. See R.S. v. R.S., 9 Kan. App. 2d 39, 44, 670 P.2d 923 (1983) (husband who with wife orally consents to treating physician that wife be inseminated for purpose of producing child of their own estopped to deny fatherhood of child); see also In re K.M.H., 285 Kan. 53, 72, 169 P.3d 1025 (2007) (although 1973 uniform act governed paternity of children born only to married women as result of artificial insemination, version adopted by Kansas omitted word "married"); 285 Kan. at 55-56 ("The mother, S.H., is an unmarried female lawyer who wanted to become a parent through artificial insemination from a known donor."); cf. Unif. Parentage Act § 704 (Unif. Law Comm'n 2000) (failure of man to sign consent does not preclude VOL. 312 SUPREME COURT OF KANSAS 337

In re M.F. finding paternity if woman, man openly held child out as their own); Unif. Parentage Act § 704 (Unif. Law Comm'n 2017) (ex- panding on 2000 Act's conditions for establishing parentage for unmarried partners; adopting gender-neutral terminology). In short, the artificial insemination act and the KPA can work together to create complementary fictions: one that the husband of the woman undergoing the procedure is the actual biological father of the child produced, see K.S.A. 2019 Supp. 23-2302, and one that the sperm donor is not the actual biological father. See K.S.A. 2019 Supp. 23-2208(f). The KPA also provides that the parentage relationship—i.e., the legal relationship incident to which the law confers or imposes rights, privileges, duties, and obligations—between a child and a mother who does not adopt the child may be established "by proof of [the mother] having given birth to the child or under this act." (Emphasis added.) K.S.A. 2019 Supp. 23-2207(a). That said, the sections of the KPA used to establish a parent- child relationship "under this act" were originally phrased only in terms of paternity. See K.S.A. 2019 Supp. 23-2208 (presumption of paternity); K.S.A. 2019 Supp. 23-2209 (determination of father-child relationship). We have previously observed, however, that this 1985 wording is broadened by other 1985 wording in K.S.A. 2019 Supp. 23-2220, which provides that any "interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable," the KPA provisions applicable to determine a father and child relationship also are used to determine a mother and child relationship. See Frazier, 296 Kan. at 746-47. It is also important to consider that, since the enactment of the statute, the United States Supreme Court has ruled that same-sex couples have a federally protected constitutional right to marry just like that of couples of different sexes. See Obergefell v. Hodges, 576 U.S. 644, 675, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). Recognition of this right has the potential to affect how the KPA is applied to establish a person has the legal rights and duties of a parent. 338 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

This general introduction to the KPA and Obergefell brings us to K.S.A. 2019 Supp. 23-2208, the statute at the heart of K.L.'s challenge. It reads in pertinent part:

"(a) A man is presumed to be the father of a child if: (1) The man and the child's mother are, or have been, married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce.

(2) Before the child's birth, the man and the child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:

(A) If the attempted marriage is voidable, the child is born during the attempted marriage or within 300 days after its termination by death or by the filing of a journal entry of a decree of annulment or divorce; or

(B) if the attempted marriage is void, the child is born within 300 days after the termination of cohabitation.

(3) After the child's birth, the man and the child's mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:

(A) The man has acknowledged paternity of the child in writing;

(B) with the man's consent, the man is named as the child's father on the child's birth certificate; or

(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 23-2223 or K.S.A. 65-2409a, and amendments thereto.

(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.

(6) The man has a duty to support the child under an order of support regardless of whether the man has ever been married to the child's mother.

"(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence.

VOL. 312 SUPREME COURT OF KANSAS 339

In re M.F.

"(c) If two or more presumptions under this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control."

Subsection (a) sets forth a series of presumptions of paternity and maternity—the latter by operation of K.S.A. 2019 Supp. 23- 2220 and, where marriage is a factor, the binding federal constitutional holding of Obergefell. Because none of these statutory presumptions involves adoption, they must, by process of elimina- tion, concern legal recognition of a "biological" relationship between the presumptive parent and child. See K.S.A. 2019 Supp. 23-2205 (limiting parent and child relationship to biological and adoptive). Plainly, in circumstances such as the one before us, when the known egg of only one of the two women in a same-sex couple is fertilized through artificial insemination, any "biological" link to the woman's partner of the same sex is a legal fiction. As recognized in Frazier, the legal fictions underlying the statutory presumptions of paternity or maternity can be used as the first step in establishing the legal fiction that a non-biological parent is to be treated in law as the biological parent, i.e., bears the rights and duties attendant to a legally binding relationship created before any court's adjudication. See Frazier, 296 Kan. at 745-46 ("the only constraint to bringing an action to determine the existence of a mother and child relationship" is that the petitioner be an "interested party"; suggestion that "interested party" synony- mous with "biological" or "adoptive" parent fails to consider other provisions of KPA); cf. K.S.A. 2019 Supp. 23-2302 (child born as result of artificial insemination considered at law in all respects the same as naturally conceived child of husband and wife). The creation of these legal fictions was and remains the choice of our Legislature, which has not reacted to 2013's Frazier or 2015's Obergefell with any relevant amendment of the KPA. See State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016) (legislative inaction may not be strongest indicator of legislative purpose but an indicator). In addition to the legal fictions discussed above, Kansas law endorses at least one more fiction of biological parenthood. In In re Marriage of Ross, 245 Kan. 591, 602, 783 P.3d 331 (1989), this court held that, when a statutory presumption of paternity has 340 SUPREME COURT OF KANSAS VOL. 312

In re M.F. arisen, before ordering a blood test to verify that a presumed parent is a biological parent, a district judge must consider the best interests of the child who has developed a parental relationship with another. Shifting parenthood based on actual biology alone could be detrimental to the emotional and physical wellbeing of any child. 245 Kan. at 602. In short, as we recognized in Frazier, see 296 Kan. at 739, 745-47, and as a Court of Appeals panel has more recently recognized in Kline v. Holmes, No. 118,067, 2018 WL 1659927, at *4- 5 (Kan. App. 2018) (unpublished opinion), biology is not necessarily destiny under the KPA. The first step for a woman seeking legal recognition of a parent-child relationship under the KPA is to satisfy one of the presumptions of maternity outlined in K.S.A. 2019 Supp. 23-2208(a). The first three presumptions are tied to the birth mother's marital status before or after the child is born. See K.S.A. 2019 Supp. 23-2208(a)(1) (child born during birth mother's marriage to potential presumptive parent or within 300 days after termination of marriage); subsection (a)(2) (birth mother attempted to marry potential presumptive parent before child's birth in solemnized ceremony in apparent compliance with law, although marriage void or voidable); subsection (a)(3) (after child's birth, birth mother and potential presumptive parent married or attempted to marry and potential presumptive parent has [A] acknowledged paternity or maternity in writing; [B] with potential presumptive parent's consent, potential presumptive parent named on child's birth certificate; or [C] potential presumptive parent obligated to support child under written voluntary promise or court order). These marriage- based presumptions are based on the "ancient presumption of . . . legitimacy." See Bariuan v. Bariuan, 186 Kan. 605, Syl. ¶ 3, 352 P.2d 29 (1960) ("ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law"). The remaining three presumptions may apply independent of the birth mother's marital status. Subsection (a)(4) is created if a potential presumptive parent "notoriously or in writing recognizes [maternity] of the child." This acknowledgment can occur through execution of a Voluntary Acknowledgment of Paternity form. The VOL. 312 SUPREME COURT OF KANSAS 341

In re M.F. principle embodied in subsection (a)(4) predates the KPA and has its roots in a determination of legitimacy in the context of inher- itance. See Arndt v. Arndt, 101 Kan. 497, 499, 167 P. 1055 (1917) ("The parentage alone is not sufficient to entitle an illegitimate child to share in the father's estate. Under our statute illegitimates are entitled to inherit from the father 'whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.'"); see also Carty v. Martin, 233 Kan. 7, 10-11, 660 P.2d 540 (1983) (paternity may be established through adjudication or acknowledgment). Subsection (a)(5) creates a presumption if genetic testing of the potential presumptive parent indicates a greater than 97% chance of an actual biological link. The final presumption is created if the potential presumptive parent "has a duty to support the child under an order of support regardless of whether the [potential presumptive parent] has ever been married to the child's mother." K.S.A. 2019 Supp. 23-2208(a)(6). The burden to prove an initial presumption of paternity or maternity under K.S.A. 2019 Supp. 23-2208(a) rests on the party seeking to establish the existence of a parent-child relationship. It is the first in a series of shifting evidentiary burdens set up by K.S.A. 2019 Supp. 23-2208(b). If the party alleging existence of a parent-child relationship succeeds in establishing a presumption, then the burden shifts to the other party. K.S.A. 2019 Supp. 23- 2208(b). That party may rebut the presumption of a legal parent- child relationship with attendant rights and duties only by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the potential presumed parent, or under subsection (c) of K.S.A. 2019 Supp. 23-2208. Subsection (c) provides that, if two conflicting presumptions arise, "the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child" prevails. K.S.A. 2019 Supp. 23-2208(c). If a presumption is rebutted, the burden shifts back to the party seeking recognition of the parent-child relationship, who has "the burden of going forward with the evidence." K.S.A. 2019 Supp. 23-2208(b). The ultimate burden placed on the party seeking recognition of the relationship can be discharged by a preponderance of the evidence, as a "clear 342 SUPREME COURT OF KANSAS VOL. 312

In re M.F. and convincing evidence" standard is not specified in the way it is on rebuttal of the initial presumption. See Landrum v. Goering, 306 Kan. 867, 878, 397 P.3d 1181 (2017) (inclusion of language in one section, exclusion in another shows Legislature's intention to differentiate in meaningful way). In this case, we are concerned with the presumption set out in K.S.A. 2019 Supp. 23-2208(a)(4): "The [woman] notoriously or in writing recognizes [maternity] of the child." Under the plain language of the statute, see State v. Carter, 311 Kan. 206, 213, 459 P.3d 186 (2020) (usual statutory interpretation practice gives effect to plain meaning of clear statutory language), if K.L. is able to demonstrate that this presumption arose—either because of her open recognition of M.F. as her child or because she has said essentially the same thing in writing—then the burden shifts to T.F. to rebut the presumption by one of the statutorily prescribed methods. K.S.A. 2019 Supp. 23-2208(b), (c). If T.F. succeeds, then the burden shifts back to K.L. to go forward with evidence. K.S.A. 2019 Supp. 23-2208(b). It is important that the statute does not identify any particular type of evidence that will satisfy any of these shifting burdens, other than explicitly giving a person in K.L.'s position the option of proving a writing to satisfy one of the alternatives giving rise to the initial presumption. It is also important that it does not demand that any party be able to show the existence of a written coparenting agreement in order to prevail. It also does not demand consideration of the best interests of the child. Frazier v. Goudschaal and Later Kansas Cases Before continuing with more than theoretical application of the statutory provisions set out above, we must also address how earlier Kansas caselaw has or has not affected that application. The parties, the district judge, and the Court of Appeals panel have all pointed to this court's decision in Frazier, 296 Kan. 730. In that case, Kelly Goudschaal and Marci Frazier had been in a long-term same-sex relationship, during which Goudschaal gave birth to two children after conceiving through artificial insemination. Both Goudschaal and Frazier had executed written coparenting agreements in conjunction with the children's births. Each of the agreements explicitly addressed the contingency of a later VOL. 312 SUPREME COURT OF KANSAS 343

In re M.F. breakup and identified Frazier as a "de facto parent." The agreements also specified that Frazier's

"'relationship with the children should be protected and promoted'; that the parties intended 'to jointly and equally share parental responsibility'; that each of the parties 'shall pay the same percent of [child] support as her net income compares to [their] combined net incomes'; 'that all major decisions affecting [the] children . . . shall be made jointly by both parties'; and that in the event of a separation 'the person who has actual physical custody w[ould] take all steps necessary to maximize the other's visitation' with the children. In addition, both a consent for medical authorization and a durable power of attorney for health care decisions were executed. Further, each woman executed a last will and testament that named the other as the children's guardian." 296 Kan. at 733.

After the couple split, Frazier filed a petition to enforce the coparenting agreements, and Goudschaal moved to dismiss, claiming the district court "lacked subject matter jurisdiction to address Frazier's requests for child custody or parenting time." 296 Kan. at 734. The district judge concluded there was jurisdiction and "determined that an award of joint custody was in the best interests of the children." 296 Kan. at 735. Goudschaal was awarded residential custody; Frazier was ordered to pay monthly child support and granted "reasonable parenting time." 296 Kan. at 735. On appeal, this court resolved first whether Frazier had standing to seek custody, then whether the district court had jurisdiction to award custody, and, finally, whether the coparenting agreement was valid and thus unenforceable. The court discussed provisions in the KPA, identical in content to those now in effect but num- bered differently because of a 2011 recodification, on its way to holding that Frazier had standing and that the district court had jurisdiction:

"Frazier also contended that she had a mother and child relationship with both children, in all respects other than biology. Accordingly, the trial court looked to the KPA provision that permits any interested party to bring an action to determine the existence or nonexistence of a mother and child relationship. K.S.A. 38-1126 [now K.S.A. 2019 Supp. 23-2220]. Goudschaal challenges that holding by pointing to the definition of parent and child relationship in K.S.A. 38-1111 [now K.S.A. 2019 Supp. 23-2205], which speaks to the legal relationship between the child and the child's biological or adoptive parents. In essence, Goudschaal argues that one must claim to be a biological or an adoptive parent in order to invoke the jurisdiction of the court pursuant to K.S.A. 38-1126 [now K.S.A 2019 Supp. 23-2220]. 344 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

"But the only constraint to bringing an action to determine the existence of a mother and child relationship set forth in K.S.A. 38-1126 [now K.S.A. 2019 Supp. 23-2220] is that the petitioner be an 'interested party.' Goudschaal's suggestion that only a biological or an adoptive parent can be an 'interested party' under [K.S.A.] 38-1126 [now K.S.A. 2019 Supp. 23-2220] fails to consider the other provisions of the KPA. Specifically, K.S.A. 38-1114(a) [now K.S.A. 2019 Supp. 23-2208(a)] provides for the presumptive establishment of a father and child relationship in certain circumstances . . . . "Obviously, except for subsection (5), the parental relationship for a father can be legally established under the KPA without the father actually being a biological or adoptive parent. That is important because K.S.A. 38-1113 [now K.S.A. 2019 Supp. 23-2207(a)] states that a mother 'may be established . . . under this act [KPA]' and K.S.A. 38-1126 [now K.S.A. 2019 Supp. 23-2220], dealing with the determination of the mother and child relationship, specifically incorporates the provisions of the KPA applicable to the father and child relationship, insofar as practicable. A harmonious reading of all of the KPA provisions indicates that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother, and, therefore, can be an 'interested party' who is authorized to bring an action to establish the existence of a mother and child relationship. . . . . "In short, we find that the district court had the authority . . . to determine the existence or nonexistence of a mother and child relationship between Frazier and the two children; to determine the validity and effect of the coparenting agreement; and to enter such orders with respect to child custody, parenting time, and child support that are in the best interests of the children." 296 Kan. at 745- 47.

The court ultimately summarized the basis for its holding that the coparenting agreement did not violate public policy:

"[T]he coparenting agreement before us cannot be construed as a prohibited sale of the children because the biological mother retains her parental duties and responsibilities. The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother. No societal interest has been harmed; no mischief has been done. . . . [T]the coparenting agreement here contains 'no element of immorality or illegality and did not violate public policy,' but rather 'the contract was for the advantage and welfare of the child[ren].' Fur- ther, the agreement provides the children with '"substantive legal equality . . . regardless of the marital status of their parents. [Citations omitted.]"'" Frazier, 296 Kan. at 755.

Our Frazier decision thus invoked the KPA to settle the standing and jurisdiction questions it faced, observing that its parenting VOL. 312 SUPREME COURT OF KANSAS 345

In re M.F. presumptions might be invoked to expand the definition of a biological parent to include those for whom an actual biological link was impossible but the creation of a legal fiction appropriate. What Frazier did not do is address exactly how the presumptions could be proved or defeated. It need not do so, because the presumption was not in play but for establishing the threshold conditions of standing and jurisdiction. The rest of the opinion focused on the entirely independent basis alleged to support Frazier's parenthood—the parties' two written coparenting agreements and their consistency with Kansas public policy. The agreements stood alone in Frazier because of their explicit designation of Frazier as a de facto parent with all of the rights and responsibilities of the birth mother. The agreements were not significant because they were used as evidence to satisfy any party's burden under the KPA. Frazier did not stand for the proposition that a same-sex partner of a birth mother must bring a coparenting agreement to court if she wants to have her parentage determined. Shortly after Frazier was decided, a Court of Appeals panel demonstrated that it understood the limits of its references to and reliance upon the KPA. See Downs v. Gilmore, No. 108,176, 2013 WL 1010667 (Kan. App. 2013) (unpublished opinion). The panel ruled that a woman who was the same-sex partner of a birth mother had standing to claim maternity, even though the parties had no written coparenting agreement. It said:

"We do not consider the lack of a written coparenting agreement, which was present in Frazier, of any significance in determining the standing issue . . . . [The (a)(4)] presumption has two paths—one in which the parent 'notoriously' recognizes parentage, meaning the parent has openly recognized the child, and another in which the parent does so 'in writing.' Either suffices . . . for a supposed father, and our Supreme Court applied [the presumption] to a case involving a supposed mother in Frazier." Gilmore, 2013 WL 1010667, at *4.

As a result, the panel reversed the district court's dismissal of the case for lack of standing and remanded. See 2013 WL 1010667, at *4. Five years later, in Kline, 2018 WL 1659927, at *5-6, a different Court of Appeals panel proceeded beyond the standing question. It reviewed a case in which the district judge had not only recognized that a same-sex partner of a birth mother could 346 SUPREME COURT OF KANSAS VOL. 312

In re M.F. petition for recognition under the KPA but also ruled that the evidence before her—even without a written or oral coparenting agreement between the parties—established that the partner "'openly and notoriously acknowledged being a parent to the mi- nor child since prior to birth, and therefore is determined . . . to be a parent.'" 2018 WL 1659927, at *4. In that case, the panel first identified the issue as whether the district judge had abused her discretion by erring as a matter of law, finding parenthood despite the absence of an actual biological or adoptive link to the child. The panel observed that the KPA's (a)(4) presumption could lead to establishment of a legal fiction of biological parenthood in such a case. "Frazier is a gateway that allows a woman to utilize practicable provisions of the Act in support of her claim of parentage. In the context of this case, [the partner's] argument that she meets the 'notorious' presumption of parentage has a lawful foundation." 2018 WL 1659927, at *5. Yet the panel reversed the district court's judgment because it agreed with the birth mother that the judge erred by using the establishment of the initial presumption as the final test for the existence of parentage. In the panel's view, the judge failed to apply the burden-shifting rubric of K.S.A. 2016 Supp. 23-2208(b), overlooking her responsibility to decide whether the birth mother rebutted the presumption by clear and convincing evidence and then whether the partner overcame that rebuttal by going forward with evidence. See 2018 WL 1659927, at *6. We agree that the district judge in Kline erred by failing to articulate any application of the burden-shifting rubric, if, in fact, it occurred. Without explicit reference to the requirements of the statute, the panel had little choice but to send the case back for further express analysis of the evidence by her. See State v. Hoge, 283 Kan. 219, 221-22, 150 P.3d 905 (2007) (meaningful appellate review precluded when trial court's findings of fact, conclusions of law inadequate to disclose controlling facts, basis for court's findings); see also State v. Mattox, 305 Kan. 1015, 1035, 390 P.3d 514 (2017) (appellate court does not reweigh evidence, assess credibility, resolve evidentiary conflicts). But we do note that the panel's recitation of the evidence the judge relied upon to reach her ultimate decision may have had as much or more to do with VOL. 312 SUPREME COURT OF KANSAS 347

In re M.F. the question of the birth mother's rebuttal of the presumption by clear and convincing evidence or the partner's further proof than it did with the initial presumption. According to the panel, the district judge relied on evidence that the birth mother sent pregnancy announcements including the partner's name, agreed to the partner being listed on baby shower invitations, and referred to the partner as "mom" in a time capsule email intended to be read by the child at a later time. It appears to us that all of these items of evidence would be material and probative on the birth mother's attitude toward her partner's maternity and not particularly enlightening on whether the partner herself notoriously recognized her own maternity or intended to take on the legal rights and duties of parenthood that attach to it.

Other Relevant Law

Two other legal parameters need to be discussed briefly before we move to the question of whether this case was resolved correctly in the district court and the Court of Appeals. The first deals with the right of a parent to make decisions about the care, custody, and control of his or her child. The second deals with the status of Kansas' subscription to the parental preference doctrine mentioned above. In a plurality opinion in Troxel v. Granville, 530 U.S. 57, 60, 73, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court held that a Washington state statute that allowed "'[a]ny person' to petition a superior court for visitation rights 'at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" was unconstitutional. After acknowledging precedent that recognized the fundamental due process right of a parent to make decisions concerning the care, custody, and control of the parent's child, the court held the "breathtakingly broad" statute meant a "court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision file[d] a visitation petition, based solely on the judge's determination of the child's best interests." 530 U.S. at 67; see also Skov v. 348 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

Wicker, 272 Kan. 240, 243, 32 P.3d 1122 (2001) ("Absent a finding of unfitness, under Troxel . . . a parent has the right to decide with whom his or her child has contact."). The plurality's conclusion was based, in part, on the statute's lack of deference to a fit parent's choices. And it warned that courts should proceed with caution in this area of the law. As the Delaware Supreme Court has noted, however, Troxel is inapposite when a person seeks judicial recognition of an existing parent-child relationship.

"The issue here is not whether the Family Court has infringed [the biological mother's] fundamental parental right to control who has access to [the child] by awarding [the non-biological mother] co-equal parental status. Rather, the issue is whether [the non-biological mother] is a legal 'parent' of [the child] who would also have parental rights to [the child]—rights that are co-equal to [the biological mother's]. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child's grandparents) seeks visitation rights. [The non-biological mother] is not 'any third party.' Rather, she is a (claimed) de facto parent who (if her claim is established, as the Family Court found it was) would also be a legal 'parent' of [the child]. Because [the non-biological mother], as a legal parent, would have a co-equal 'fundamental parental interest' in raising [the child], allowing [the non-biological mother] to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe [the biological mother's] due process rights. In short, [the biological mother's] due process claim fails for lack of a valid premise." Smith v. Guest, 16 A.3d 920, 931 (Del. 2011).

The parental preference doctrine, recognized and applied in Kansas, see In re Guardianship and Conservatorship of B.H., 309 Kan. 1097, Syl. ¶ 2, 442 P.3d 457 (2019), is defined as the "principle that custody of a minor child should ordinarily be granted to a fit parent rather than another person." Black's Law Dictionary 1341 (11th ed. 2019). It thus generally prevents an award of child custody to a third person over a parent, but it does not distinguish between fit parents or prevent a fit parent from making a choice to share custody with another. See Frazier, 296 Kan. at 751 ("where two fit parents knowingly, intelligently, and voluntarily waive their parental preference by entering into a custody agreement with a third party that is in the best interests of the child, the court will enforce the agreement rather than second guess the parents' decision") (citing In re Marriage of Nelson, 34 Kan. App. 2d 879, 125 P.3d 1081 [2006]). In short, although the parental preference doctrine, like Troxel's recognition of a parent's due process VOL. 312 SUPREME COURT OF KANSAS 349

In re M.F. rights, counsels protection of a parent's choices, we have recognized that such choices, freely made, can cut against a parent's later-developing druthers.

Application of Controlling Law

All of the foregoing has been a lengthy—but necessary—prel- ude to what turns out to be our fairly straightforward resolution of this case. It turns initially on the plain language of the statute, with a constitutional overlay demanded by Troxel, 430 U.S. at 72-75. To recap, K.L. seeks judicial recognition of her legal parentage relationship with M.F.—i.e., a relationship incident "to which the law confers or imposes rights, privileges, duties and obligations." See K.S.A. 2019 Supp. 23-2205. She wants to employ the legal fiction permitted through the KPA by invoking the presumption in subsection (a)(4) of K.S.A. 2019 Supp. 23-2208, because she "notoriously . . . recognize[d]" her maternity of M.F. If she can succeed in demonstrating that this presumption arose, then, under subsections (b) and (c), T.F. must rebut the presumption by clear and convincing evidence that no such legal relationship ever existed or by showing the district judge a court decree establishing paternity or maternity of another individual or by invoking a competing presumption under (c). If T.F. succeeds using one of these methods to rebut the initial presumption in K.L.'s favor, then K.L. bears the burden of going forward with evidence. Evidence of what? It depends. If the parties have remained focused on the existence or nonexistence of the one (a)(4) presumption, then evidence material and probative of it is all that matters. The question is whether someone became a parent, not whether he or she was a good one or, even less, whether he or she was a worthy partner to the birth mother. If, instead, competing presumptions have arisen, then facts that may ultimately support or defeat either of them are pertinent. But let us be clear: Frazier did not demand more than the KPA language. The couple in that case happened to have written agreements that referred to the partner of the birth mother as a de facto parent. Our recognition of that reality was not the equivalent of this court requiring such documents or their oral equivalents in any parentage case pursued by someone who can show standing 350 SUPREME COURT OF KANSAS VOL. 312

In re M.F. and subject matter jurisdiction under subsection (a)(4). Downs and Kline were both correct in this respect; neither required that one or the other party be able to demonstrate the existence of a "meeting of the minds" to support a written or oral coparenting agreement. Nor did they require satisfaction of any particular test for a de facto, psychological, equitable, or functional parent. See In re Custody of H.S.H.-K., 193 Wis. 2d 649, 658, 533 N.W.2d 419 (1995) (elements for creating de facto parental relationship); El- rod, A Child's Perspective of Defining A Parent: The Case for In- tended Parenthood, 25 BYU J. Pub. L. 245, 261-63 (2011) (discussing "parent by estoppel," psychological parents, and de facto parents). Frazier should not be overread to do so. All of this means that there was error below. Neither the KPA nor this court have required proof of the sorts of things the district judge and the Court of Appeals explicitly focused on here when analyzing whether the evidence was adequate. The question when conducting the statutory analysis was not whether K.L. engaged in "open and notorious demonstrations of parenting" or "open and notorious assumption of parenting responsibilities" for M.F. It simply was not necessary that she demonstrate she was an atten- tive, hands-on, involved mother. Rather, she had to show that she notoriously recognized her maternity, including the rights it would give her and the duties it would impose upon her. The two courts' focus, under the statutory language that our Legislature has not seen fit to change, needed to be on whether K.L. had qualified as one of M.F.'s two parents, not on whether she had later turned out to be a model of parenting success. The judgment of the district court and the decision of the Court of Appeals affirming it must be reversed and this case must be remanded to the district court for the judge to take another look at the evidence under the analysis pattern set out above. As in Kline, the judge failed to articulate his application of the burden shifting required under the statute. Perhaps more critical, the evidence on which he focused appeared to be if not the wrong evidence, at least the right evidence as material and probative to support the wrong legal conclusion. He needed to determine in the first instance whether K.L. notoriously acknowledged her mater- VOL. 312 SUPREME COURT OF KANSAS 351

In re M.F. nity. That was the sole initial issue, not whether, once such an acknowledgment occurred, she performed her duties admirably. If K.L.'s maternity is established, there will no doubt be ample opportunity later in the progress of this case for the court to evaluate her behavior to determine how much she should be permitted to be involved in M.F.'s life. Before we return this case to the district court, however, we must give additional guidance for the proceedings on remand. First, as established above, neither the KPA's plain language nor Frazier requires proof of a written or oral coparenting agreement between the parties. The district judge need not search for a "meeting of the minds." But we are nevertheless persuaded by Troxel that proof T.F. implicitly or explicitly consented to share parenting with K.L. at the time of M.F.'s birth is indispensable to constitutional application of the statutory presumption at issue. Such a consent to shared parentage does not sever or waive T.F.'s due process right to be a parent; provided K.L. has met the statutory requirement of recognition of her maternity, it merely endows K.L. with the same and equal right. But we are nevertheless wary of allowing a court to show zero deference to T.F.'s choices for her child. To interpret subsection (a)(4) of K.S.A. 2019 Supp. 23- 2208 to allow anyone—even one with no relationship of any kind with the birth mother—to unilaterally pursue parenthood under this presumption has the potential to lead to unconstitutional as well as absurd results. We habitually assume that at least the latter could not have been the intention of our Legislature. See Hays v. Ruther, 298 Kan. 402, 406, 313 P.3d 782 (2013) (judicial interpretation of statutes should avoid absurd or unreasonable results). Moreover, we are convinced that this Troxel overlay on the statute harmonizes it with Kansas' previous application of the parental preference rule, as described above, and with our recent recognition that a pregnant woman has a liberty interest she may vindicate by controlling decisions about whether to carry a pregnancy to term. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 680, 440 P.3d 461 (2019). A birth mother's consent to share parenting may be implicit or explicit, subject to proof by direct or circumstantial evidence, tes- 352 SUPREME COURT OF KANSAS VOL. 312

In re M.F. timonial or documentary. For example, the type of evidence mentioned in Kline might not qualify as an explicit consent to shared parenting, but it would certainly be indicative of an intent to share. A birth mother's explicit testimony of her hope to share parenting with a partner could qualify as direct evidence of consent to share her parental rights to make decisions about care, custody, and control of a child. Likewise, the proof to support the notorious recognition demanded of a person in K.L.'s position can be direct or circumstantial, testimonial or documentary. Further, as alluded to above, this case illustrates that proof of timing of an acknowledgment of maternity and a consent to share parenting is critical. The court must avoid giving either party a veto after the arrangement has been put in place and into effect at the time of the child's birth. Allowing unilateral action by either party to thwart the maternity of the other after a child has arrived and vital bonds with both have begun to form is unacceptable. On this question, we note that, under several of the KPA's presumptions, our Legislature has made the timing of the child's birth significant. See K.S.A. 2019 Supp. 23-2208(a)(1), (a)(2), (a)(3). These provisions support the idea that it is at the moment of birth when Kansas law deems a child to have either one parent or two. Designating the time of the child's birth as the time when a birth mother must have consented to shared parenting and a woman in K.L.'s position must notoriously recognize maternity also makes sense for another, practical reason. Although the current statutory language means we emphatically stop short of requiring a formal contractual arrangement, a demand that each individual have made up her mind as of the time of the baby's arrival incentivizes stability for that child over surmountable relationship disappointments that are bound to occur. As with existence of premeditation when a trigger is pulled, the evidence of what is in the mind of the person pulling it may come from words and actions before, during, or after the event. See State v. Smith-Parker, 301 Kan. 132, 153, 340 P.3d 485 (2014) (listing factors used to evaluate circumstantial proof of premeditation, including actions before, during, after killing). In the case of the birth of a child, the crystallization of the parties' individual intents at the time the child enters the world configures the family. VOL. 312 SUPREME COURT OF KANSAS 353

In re M.F.

As a final note, to the extent the parties have asked us to consider independent arguments based on the merits of their equal protection and best interests arguments, we do not reach those issues today. It is unnecessary to do so for us to dispose of this case at this stage.

CONCLUSION

We have determined that the district judge erred as a matter of law by failing to apply the correct legal standards to the parentage case before him. The Court of Appeals did not correct the error. We therefore reverse the district court's judgment and the Court of Appeals panel's decision affirming it. This case is remanded to the district court for further proceedings consistent with this opinion. On remand, the district judge will be free to allow submission of additional evidence by the parties if he deems such evidence necessary to conduct the legal analysis we have outlined. This evidence may extend to proof of the existence or nonexistence of competing presumptions.

HENRY W. GREEN, JR., J., assigned.1 STEVE LEBEN, J., assigned.2

* * *

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 117,301 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 117,301 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy of the court by the retirement of Chief Justice Lawton R. Nuss.

354 SUPREME COURT OF KANSAS VOL. 312

In re M.F. can hardly be described as a "legal" one. Indeed, under any accepted mode of statutory interpretation, the notion that the plain language of the Kansas Parentage Act means that a person not biologically related to a child can "become" a biological parent is untenable. I have demonstrated as much previously in In re Adop- tion of T.M.M.H., 307 Kan. 902, 920-38, 416 P.3d 999 (2019) (Stegall, J., concurring and dissenting). The majority rules that a person "may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23- 2208(a)(4) by notoriously recognizing her maternity." 312 Kan. 322, Syl. ¶ 1. As I explained in T.M.M.H., the key to understanding the statutory scheme—and K.S.A. 2019 Supp. 23-2208(a)(4) in particular—is to understand the plain meaning of the words paternity, maternity, and recognize or acknowledge:

"Paternity means something more specific than just generic fatherhood. As used in the KPA, it clearly means biological fatherhood. Paternity is the 'condition of being a father, esp. a biological one,' and maternity is the 'condition of being a mother, esp. a biological one.' Black's Law Dictionary 1125, 1306 (10th ed. 2014). An adoptive father does not take a paternity test to establish fatherhood— to do so would be both futile and nonsensical. Legal fatherhood is broader than mere paternity. "Furthermore, to acknowledge something means to recognize it 'as being factual.' Black's Law Dictionary 27 (10th ed. 2014). The act of acknowledgment [or recognition] does not make something true or real. To acknowledge something is merely to accept and recognize as true a preexisting reality. Thus, one cannot make oneself into a father by acknowledgment [or recognition]. A person who makes a voluntary acknowledgment of paternity is not akin to a person taking a citizenship oath—a noncitizen immediately beforehand and a citizen immediately afterward. Rather, a person acknowledging [or recognizing] paternity is a person who purportedly already is biologically related to a child and is merely availing himself of a presumption in favor of that preexisting condition. We explicitly made this point recently when we construed the meaning of "'acknowledgment of paternity'" to mean, citing Black's Law Dictionary, a "'father's public recognition of a child as his own.'" State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 49, 392 P.3d 68 (2017). One can only publicly recognize a fact that preexists the act of recognition. Recognition does not give birth to the fact." 307 Kan. at 929 (Stegall, J., concurring and dissenting).

In re M.F. at work here is little more than "saying it makes it so." And that is no rule at all. The majority tries to rally statutory support for its legal fiction of non-biological biology by pointing to the artificial insemination provisions of the KPA. The majority suggest that those provisions "work together to create complementary fictions: one that the husband of the woman undergoing the procedure is the actual biological father of the child produced, see K.S.A. 2019 Supp. 23-2302, and one that the sperm donor is not the actual biological father. See K.S.A. 2019 Supp. 23-2208(f)." 312 Kan. at 337.

But this, too, is incorrect. In fact,

"When parents in Kansas utilize ART in accordance with statutory guide- lines, the nonbiological spouse who consents in writing to the procedure is automatically granted in law the rights and responsibilities of a parent-child relationship with the resulting child. That consent has the same effect 'as adoption papers.' K.S.A. 2016 Supp. 23-2303. And the child is given, by law, a status identical to 'a naturally conceived child of the [married couple].' K.S.A. 2016 Supp. 23-2302. Or as Professor Elrod put it in her amicus brief to this court in Frazier, the 'parent-child relationships resulting from ART are no different from those formed naturally or by adoption.' Presumably, though Kansas law speaks in terms of 'husband and wife,' the opportunity to avail themselves of a de facto adoption through ART is necessarily extended to same-sex married couples pursuant to the United States Supreme Court's ruling in Obergefell v. Hodges, 576 U.S. [644], 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015); see also Marie v. Mosier, 196 F. Supp. 3d 1202, 1221 (D. Kan. 2016) (relying on Obergefell to enjoin the executive branch of Kansas from 'treating same-sex married couples differently' than 'opposite-sex married couples' when determining 'the other rights, protections, obligations, or benefits of marriage')." 307 Kan. at 927-28 (Stegall, J., concurring and dissenting).

There is no fiction of biology created by the Assisted Repro- ductive Technology (ART) procedures. There is only a conferral of rights and responsibilities—of the legal status of parent and child. If anything, the ART provisions are merely an alternative form of adoption. This is why the KPA explicitly uses the legal rules governing adoptions to govern the consent required by the ART scheme. See K.S.A. 2019 Supp. 23-2303. It is why courts can refer to the parent child relationship between the non-biological parent of a child produced by ART and the child as a "de facto adoption." In re L.C., No. 120,072, 2020 WL 110866, at *6 (Kan. App. 2020) (unpublished opinion). 356 SUPREME COURT OF KANSAS VOL. 312

In re M.F.

Once the majority has arrived at its "declared parentage" rule, the rest of the opinion is sheer policy making. How is this rule supposed to be applied? Certainly the statute doesn't tell us. What about the actual biological parents and what they want? What about the possibilities of fraud, or mere changes of whim? Does the magic that creates a biological parent out of nothing have to be set down in writing? The majority recognizes these are vexing problems, and pro- ceeds to do its best to provide workable answers. But of course solving these policy questions is not this court's job. See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008) ("It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution."). My fear is that in the process, we have continued down the dangerous road we set out on in Frazier. Just as in T.M.M.H., I believe today's majority simply believes "that the responsibility to care for children can be shared with people who are neither biological nor adoptive parents and the law ought to find a way to recognize this when it is in the best interests of the child." In re Adoption of T.M.M.H., 307 Kan. at 937 (Stegall, J., concurring and dissenting). Unfortunately, the legal scheme we have created now permits the commodification of children:

"This … is nothing short of a revolution in societal norms that have for centuries firmly rejected the commodification of children. Here I must be clear—the Fra- zier court and today's plurality is saying that in Kansas, the prevailing law dic- tates that a parent in relation to a child possesses a discreet, property-like thing called a 'parental preference' which is divisible and can be 'contracted' away to a third party, thus conferring on that third party an equal parental preference which transmogrifies the third party into another lawful parent of the child. What are the limiting principles governing these transactions? We do not know." 307 Kan. at 937 (Stegall, J., concurring and dissenting).

Today, we go even a step further and suggest that the third party's legal status as a parent can be brought into existence by the mere declaration of that third party, and such a declaration will be enforced even against a biological parent's rights by the mere showing of "implicit . . . proof by . . . circumstantial evidence . . . [of] an intent to share." 312 Kan. at 351-52. But children are not cookies, and sharing is far too elusive a concept on which to establish VOL. 312 SUPREME COURT OF KANSAS 357

In re M.F. such bedrock relationships as those which exist between parents and their children.

As I wrote in T.M.M.H.,

"Long ago, Justice Brewer, writing for this court, articulated the fundamental manner in which the parent-child relationship is rooted in the 'law of nature.' Chapsky v. Wood, 26 Kan. 650, 652 (1881). As such, the positive law protects what we have come to call the 'parental preference' which is described as 'a fundamental right . . . to the care, custody and control of [the parent's] child.' . . . (quoting Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 [1981]). Justice Brewer recognized, however, that this parental preference 'is not like the right of property' which would render 'a child . . . like a horse or any other chattel, subject-matter for . . . gift or contract.' Chapsky, 26 Kan. at 652-53." 307 Kan. at 936 (Stegall, J., concurring and dissenting).

We have abandoned these sound principles at great risk to vulnerable children across our state. As a final observation, I am struck by the fact that while I have made clear my disagreement with the majority's consistent interpretation of the KPA—in Frazier, T.M.M.H., and in today's cases—the Leg- islature has said nothing. It is true that legislative silence is a weak indicator of correct judicial interpretations. State v. Hambright, 310 Kan. 408, 419, 447 P.3d 972 (2019) ("'Legislative inaction may not be the strongest indicator of specific legislative purpose, but it is an indicator [Citations omitted].'"). Nonetheless, legislative silence is a practical acquiescence if not a legal one. If the legislative branch does not agree with this court's interpretation of the KPA, it has a constitutional obligation to act. Otherwise, the carefully balanced separation of powers intended by our constitutional structure cannot properly function. Si- erra Club v. Mosier, 305 Kan. 1090, Syl. ¶ 8, 391 P.3d 667 (2017) ("Under the separation of powers doctrine, determination of appropriate policy must be left to the legislative and executive branches of Kan- sas government, and courts are limited to the exercise of judicial power in interpreting and applying the law"); Solomon v. State, 303 Kan. 512, 545, 364 P.3d 536 (2015) (Stegall, J., concurring) ("when 'the Govern- ment is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it'").

For these reasons, I dissent.

358 SUPREME COURT OF KANSAS VOL. 312

State v. Lutz

No. 117,496

STATE OF KANSAS, Appellee, v. BRIAN JOSHUA LUTZ, Appellant.

474 P.3d 1258

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Motion to Suppress Evidence—Appellate Review. Ap- pellate courts employ a two-part process when reviewing a district court's decision on a motion to suppress evidence. The district court's factual findings are reviewed to determine if they are supported by substantial competent evidence while the legal conclusions drawn from the factual findings are reviewed using a de novo standard.

2. SAME—Motion to Suppress Evidence—Deference to Fact Finder in Ap- pellate Review. Deference in appellate review is not to a particular witness but to the fact finder who weighed and evaluated the evidence.

3. MOTOR VEHICLES—Traffic Stop Duration—Time Required for Routine Stop—Reasonableness. The tolerable duration of police inquiries in the traffic stop context is not based on any rule of thumb about the minutes required for a 'routine' stop, but is determined by the time required to complete the tasks involved in processing the mission of the traffic stop in question and to attend to related safety concerns. Officers may take reasonable and necessary precautions for their safety so long as such measures are not unduly burdensome under the circumstances.

4. SAME—Traffic Stop—Time Required for Stop—Negligibly Burdensome in This Case. The time involved in calling and waiting for backup officers was "negligibly burdensome" given the circumstances present in this case.

5. POLICE AND SHERIFFS—Traffic Stop—Reasonable Actions of Officers in This Case. The actions of the officers here, including calling for a drug dog, did not measurably extend the duration of the traffic stop beyond the time necessary to achieve the stop's basic objective of processing the observed traffic violation.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 15, 2018. Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed November 6, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Clayton J. Perkins, of Capital Appellate Defender Office, was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

VOL. 312 SUPREME COURT OF KANSAS 359

State v. Lutz

WARD, J.: Brian Lutz was the front seat passenger in a vehicle stopped by Topeka police officers early one morning for a traffic violation. The vehicle was coming from the location of a suspected drug transaction. Backup officers and a canine officer were requested to the scene of the stop and arrived shortly. A trainee officer at the scene was tasked with writing a warning citation to the driver while other officers began removing the vehicle's occupants to facilitate a drug dog sniff. As Lutz was stepping from the passenger side of the vehicle, drug paraphernalia was observed in his immediate vicinity. The dog sniff was called off before it began. A warrantless probable cause search of the vehicle disclosed controlled substances. Lutz was charged with possessing marijuana, methamphetamine, and drug paraphernalia. He moved to suppress the seized evidence arguing that the initial stop of the vehicle was without sufficient legal justification. He also argued that officers detained occupants of the vehicle longer than lawfully permitted to accommodate the planned drug dog sniff of the vehicle. The motion to suppress was heard and denied by the district court. That decision was affirmed by a panel of the Court of Appeals. We likewise affirm the district court's denial of the suppression motion.

PROCEDURAL HISTORY OF THE CASE

Hearing on Motion to Suppress

An evidentiary hearing on defendant's motion to suppress was held in the Shawnee County District Court. Three of the police officers involved in the case provided the following testimony. No other evidence was presented. Just before 3 a.m. on April 23, 2015, Topeka, Kansas police officers Brandon Austin and Scott Sinsel began surveilling a home in Topeka in response to a citizen complaint about vehicles, bicy- cles, and pedestrians coming and going for short periods of time from the suspect residence at all hours of the night. Austin had been with the department over six years. He was experienced in drug investigations and was assigned as field trainer for Sinsel who was a "young recruit officer" riding along with him. Austin parked the patrol vehicle some distance from the residence. He observed a vehicle and bicycle come to the house and 360 SUPREME COURT OF KANSAS VOL. 312

State v. Lutz not leave. He then observed a second vehicle arrive at the house, stay for "about a minute," and leave. Suspecting a possible drug transaction, Austin followed the departing vehicle to a Kwik Shop where the vehicle stayed for less than five minutes and then left. He continued to follow the car for several miles and watched it move from one clearly designated eastbound lane of 29th street in Topeka into the other eastbound lane of 29th street without sig- naling the change of lanes. Based on this observed traffic violation, Austin initiated a traffic stop at 3:23 a.m. by activating emergency lights. The vehicle was a 2007 black Buick 4-door with a temporary tag. It slowed as if to stop but continued for a while before finally coming to a complete stop in a bank parking lot. Because the Buick had three occupants, Austin called for backup officers before he and Sinsel got out of the patrol car. He then went to the driver side of the Buick. Sinsel went to the passenger side. The front seat passenger was the defendant, Brian Lutz. The officers noticed that Lutz was not wearing a seat belt as he sat there. Austin was familiar with Lutz. He had investigated a shooting at Lutz' residence that occurred within the last two months. And he was aware of a very recent traffic stop involving Lutz, marijuana, and a gun. The occupants of the vehicle were told to put their hands where officers could see them. They did so without incident. Aus- tin collected identifying information from the driver. Sinsel collected the same from Lutz. The occupants were told to stay in their car while the two officers went back to the patrol car to run identifying information on the driver and Lutz. There were no wants or warrants on either person. While in the patrol car and still awaiting the arrival of backup officers, Austin called for a drug dog because of the nature of the stop and his previous knowledge of Lutz. The canine handler, Officer Michael Ahlstedt, was one block away at the time. The process of stopping the vehicle, calling for backup, approaching the vehicle, speaking with the driver, gathering identification information from the driver and front seat passenger, going back to the patrol car, running wants and warrants, and calling for the drug dog, all occurred within a span of seven to eight minutes. The last three minutes or so of this timeframe were spent VOL. 312 SUPREME COURT OF KANSAS 361

State v. Lutz obtaining information regarding the driver and front seat passenger. Backup officers Lee Trout and Kelsey Krogmann arrived on scene in separate police vehicles near the end of this seven to eight minutes. They were briefed by Austin regarding the identity of the driver and front seat passenger. He told them he had called for a drug dog and that the canine handler was on his way. Austin told Sinsel at this time to return to the patrol car and begin writing a warning citation to the driver for the lane change violation. Sinsel complied with Austin's request. It was about this time, just after the eight-minute mark, that officer Michael Ahlstedt arrived with the drug dog. He asked officers on scene to have all occupants removed from the vehicle so that his canine could perform a sniff of the vehicle safely, without occupant interference. Austin would deal with the driver, Trout the front seat passenger, and Krogmann the backseat passenger. Austin approached the driver, explained the drug dog search to her, and told her that "if everything checks out" she would likely receive a traffic warning citation and be free to leave. He escorted her back to the patrol car. Trout approached Lutz and had him get out of the front passenger seat. When Lutz did so, Trout observed in plain view an item of drug paraphernalia (marijuana grinder) in the pocket of the front passenger door. He immediately alerted Austin that he had found the item. Having discovered the drug paraphernalia, officers concluded they had probable cause to search the vehicle and terminated the drug dog sniff before it even began. The subsequent warrantless search of the vehicle disclosed additional items of suspected drug paraphernalia as well as suspected controlled substances. Sinsel was still in the patrol car writing the warning citation and observed that the vehicle occupants were placed in handcuffs after being removed from the car. He knew something had occurred, but he was not sure what. According to Austin, the total time that elapsed from the stop of the suspect vehicle until the time Trout observed drug paraphernalia in the passenger door pocket was "less than 12 minutes." It was at or shortly after the eight-minute mark that Sinsel began writing the warning citation as directed. Austin estimated that it 362 SUPREME COURT OF KANSAS VOL. 312

State v. Lutz takes him from 10-15 minutes to complete the writing of a traffic citation following a car stop, generally closer to 10 minutes. He estimated that Sinsel, an officer in training, finished with the warning citation in this case approximately 12-13 minutes after the initial traffic stop.

District Court Ruling on Motion to Suppress

Following review of the suppression hearing testimony, the district court announced its findings of fact and legal conclusions. The court detailed the testimony of the officers given at the suppression hearing. It then addressed the two legal issues raised by Lutz in his motion to suppress, namely whether the officers had a sufficient legal basis to make the initial traffic stop, and whether the officers unlawfully extended the duration of the traffic stop beyond its underlying objective. Regarding the basis for the traffic stop, the district court concluded that "the officers had the required lawful basis for stopping the Buick automobile." Even though the court noted that the stop may have been pretextual (suspicion of drug activity), it concluded the stop was nonetheless properly based upon an observed traffic law violation (improper lane change) and thus grounded in reasonable suspicion of criminal activity. Citing State v. DeMarco, 236 Kan. 727, 952 P.2d 1276 (1998), State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014), and K.S.A. 22-2402(1). Turning to the question of whether the traffic stop was unlawfully extended to accommodate the drug dog sniff, the district court analyzed the rule of law from Rodriguez v. United States, 575 U.S. 348, 350, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), which states that an unconstitutional seizure occurs when law enforcement officers extend a traffic stop longer than necessary to effectuate the purpose of the stop, i.e., the processing of the underlying traffic violation. The district court concluded the traffic stop was not unlawfully extended by the planned drug dog sniff and denied the motion.

Court of Appeals Decision

In an unpublished decision a panel of the Court of Appeals affirmed the district court's denial of Lutz' motion to suppress. State v. Lutz, No. 117,496, 2018 WL 2999228, at *1 (Kan. App. 2018) (unpublished opinion). The panel outlined the factual and procedural history of the case. It found that substantial competent VOL. 312 SUPREME COURT OF KANSAS 363

State v. Lutz evidence supported the district court's findings. The panel then concluded: "Because the traffic stop was not prolonged due to the dog sniff, the officers did not violate Brian’s constitutional rights by beginning the dog sniff process—removing him from the car. See Rodriguez, 135 S. Ct. at 1616; Caballes, 543 U.S. at 409 (holding dog sniff of exterior of car during lawful seizure does not implicate legitimate privacy interests); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (holding officers can remove vehicle occupants from car pending completion of traffic stop). The subsequent search of the vehicle was lawful based on Trout viewing the marijuana grinder. See State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012) (noting plain view is a recognized exception to warrant requirement); State v. Harrington, 2 Kan. App. 2d 592, 593-94, 585 P.2d 618 (1978) (plain view of marijuana justified warrantless search)." 2018 WL 2999228, at *3.

ANALYSIS

Standard of Review

The burden is on the State to prove the lawfulness of a search and seizure. K.S.A. 22-3216(2). Appellate courts employ a two- part process when reviewing a district court's decision on a motion to suppress evidence. The district court's factual findings are reviewed to determine if they are supported by substantial competent evidence. Appellate courts do not reweigh the evidence, assess witness credibility, or resolve evidentiary conflicts. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). Deference is not to a particular witness but to the fact-finder who weighed and evaluated the evidence. State v. Lowery, 308 Kan. 359, 367, 420 P.3d 456 (2018). The legal conclusions drawn from the factual findings are reviewed using a de novo standard. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

Discussion

Several issues were raised by Lutz before the district court and the Court of Appeals, but the sole issue remaining for this court's 364 SUPREME COURT OF KANSAS VOL. 312

State v. Lutz consideration is whether the officers unlawfully extend the duration of the traffic stop beyond the time needed to fulfill its underlying objective and thus violated the rule of law announced in Ro- driguez. A routine traffic stop is a seizure under the Fourth Amend- ment. DeMarco, 263 Kan. at 733; Jones, 300 Kan. at 637. It is a form of investigative detention which must be supported from its inception by articulable reasonable suspicion of criminal activity. State v. Jimenez, 308 Kan. 315, 323, 420 P.3d 464 (2018); see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The scope of the traffic stop "must be strictly tied to and justified by the circumstances which rendered its initiation proper." State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). The United States Supreme Court has said, "A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed 2d 842 (2005). Later in Rodriguez that Court explained that the "tolerable duration" of police inquiries in the traffic stop context is not based on any rule of thumb about the minutes required for a 'routine' stop. Instead it is determined by the time required to complete the tasks involved in processing the mission of the traffic stop in question, and to attend to related safety concerns. "Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed." 575 U.S. at 354. Following the Rodriguez decision, this court held in Jimenez that an officer's detailed questions into the travel plans of a motorist measurably and unlawfully extended the duration of the traffic stop and was not supported by any reasonable suspicion or probable cause of other criminal activity. This court noted that beyond simply determining whether to issue a citation, a law enforcement officer's mission in a traffic stop typically includes checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. Officers may also take "negligibly burdensome precautions" for their safety. 308 Kan. at 316-17 (citing Rodriguez, 575 U.S. at 356). VOL. 312 SUPREME COURT OF KANSAS 365

State v. Lutz

In the case before us the district court found from the suppression hearing testimony that 12 minutes elapsed from the initial vehicle stop at 3:23 a.m. until the vehicle's occupants were asked to exit the car. The court recited Officer Austin's estimation that it would take Officer Sinsel 12-13 minutes to complete writing the traffic citation. The court found that Officer Sinsel began writing the citation about eight minutes into the stop and "was still in the process of writing out the citations when the occupants were asked to step out of the car." The district court then concluded:

"Overall, the time between the stop and plain view of the illegal contraband was a short period of time. The actions of the officers, including Officer Ahlstedt and Officer Trout, to this point, did not prolong or extend the duration of the original traffic stop any further than what was necessary to complete the investigation for the traffic violations and issue citations for the traffic violations."

The district court's factual findings are a fair interpretation of the record made at the suppression hearing. Although there may be differing ways to view the record below, substantial competent evidence supports the district court's findings, and those findings support the legal conclusions reached by the district court. From the initiation of the traffic stop at 3:23 a.m. until the moment when Officer Trout observed drug paraphernalia in plain view next to Lutz, the stop was not measurably extended beyond its basic objective of processing the observed traffic violation. Calling for and waiting for backup officers was both reasonable and necessary given the time of morning, the relative inexperience of one of the two officers, the greater number of occupants in the car than officers on scene at the time, and Officer Austin's knowledge of previous incidents involving Lutz in which firearms were discharged or were present. The limited time involved in securing this assistance was not unduly burdensome under the circumstances. The two backup officers arrived within minutes of being summoned. The brief discussion and coordination between the various officers ensured that each officer understood the circumstances of the stop, the identity of the stopped vehicle's occupants, and the next steps to be taken. 366 SUPREME COURT OF KANSAS VOL. 312

State v. Lutz

A dog sniff of the exterior of an automobile during an otherwise lawful traffic stop does not implicate legitimate privacy interests and is not a search subject to the Fourth Amendment. Ca- balles, 543 U.S. at 409; United States v. Jacobsen, 466 U.S. 109, 123-24, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); State v. Barker, 252 Kan. 949, 957, 850 P.2d 885 (1993). Removal of the vehicle's occupants, including passengers, is permitted pending completion of the traffic stop. Maryland v. Wilson, 519 U.S. 408, 414-15; 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). Even given the district court's conclusion that officers lacked sufficient reasonable suspicion of drug activity to extend the traffic stop, utilization of a drug dog during the stop was nonetheless lawful. As noted above, the district court found here that "[t]he actions of the officers . . . did not prolong or extend the duration of the original traffic stop any further than what was necessary to complete the investigation for the traffic violations and issue citations for the traffic violation." See Rodriguez, 575 U.S. at 356. Giving appropriate deference to those findings brings us to the conclusion that the district court did not err in denying the motion to suppress.

CONCLUSION

The decision of the district court denying the motion to suppress is affirmed. The judgment of the Court of Appeals is affirmed.

1 MICHAEL E. WARD, Senior Judge, assigned.

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 117,496 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 312 SUPREME COURT OF KANSAS 367

In re W.L.

No. 119,536

In the Matter of the Parentage of W.L. and G.L., By and Through M.S., Appellant, and E.L., Appellee.

475 P.3d 338

SYLLABUS BY THE COURT

1. PARENT AND CHILD—Kansas Parentage Act—Same-Sex Partner May Establish Parentage. The same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23-2208(a)(4) by notoriously recognizing her maternity.

2. SAME—Kansas Parentage Act—Burden on Party to Establish Existence of Presumption Under Act—Opposing Party Must Rebut Presumption. A woman who seeks to establish parentage by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) bears the initial burden to demonstrate the existence of the presumption. If she succeeds, the burden shifts to the party opposed to establishment of the mother and child relationship to rebut the presumption by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the presumed parent, or under K.S.A. 2019 Supp. 23-2208(c).

4. SAME—Kansas Parentage Act—Rebuttal of Presumption—Burden Shifts to Original Party. Under K.S.A. 2019 Supp. 23-2208(b), if a presumption under K.S.A. 2019 Supp. 23-2208(a)(4) is rebutted, the burden of going forward with evidence shifts back to the party seeking establishment of the parent and child relationship. That party must go forward with the evidence, and the ultimate burden can be discharged by a preponderance of the evidence.

5. SAME—Kansas Parentage Act—Presumption of Maternity under Stat- ute—No Requirement of Oral or Written Agreement. A woman seeking to establish parenthood who relies on the presumption of maternity under K.S.A. 2019 Supp. 23-2208(a)(4) need not show the existence of a written or oral coparenting agreement between her and the birth mother. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child's birth. In addition, in keeping with Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the court must ultimately be persuaded that the birth mother, at the 368 SUPREME COURT OF KANSAS VOL. 312

In re W.L.

time of the child's birth, consented to share her due process right to decision- making about her child's care, custody, and control with the woman who is claiming parentage under the KPA.

6. SAME—Kansas Parentage Act—Establishment of Parent-Child Relation- ship—Evidence. Evidence in support of either party's position in a parentage action brought by a person seeking to establish a parent and child relationship by using the presumption in K.S.A. 2019 Supp. 23-2208(a)(4) may be direct or circumstantial, testimonial or documentary.

Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 958, 441 P.3d 495 (2019). Appeal from Crawford District Court; RICHARD M. SMITH, judge. Opinion filed November 6, 2020. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions.

Valerie L. Moore, of The Law Offices of Valerie L. Moore, of Lenexa, argued the cause, and was on the briefs for appellant.

Adam M. Hall, of Thompson Warner, P.A., of Lawrence, argued the cause, and Sarah E. Warner, of the same firm, was with him on the brief for appellee.

Gillian Chadwick, director, Washburn Law Clinic, and Heather Wedel and Jason Mewhirter, legal interns, Washburn Law Clinic, of Topeka, were on the brief for amicus curiae Washburn University School of Law Children and Family Law Center.

The opinion of the court was delivered by

BEIER, J.: This case and In re M.F., 312 Kan. 322 (No. 117,301, this day decided), address whether the same-sex romantic partner of a woman who conceives through artificial insemination and gives birth during the couple's relationship can be recognized as a legal parent under the Kansas Parentage Act (KPA), even if the couple has not entered into a written or oral coparenting agreement. In the district court, the judge ruled that the partner had no parental rights. A panel of our Court of Appeals affirmed that result. In re W.L., 56 Kan. App. 2d 958, 441 P.3d 495 (2019). We accepted the partner's petition for review. We rule that such a partner can be recognized as a legal parent through use of K.S.A. 2019 Supp. 23-2208(a)(4) when the birth mother has consented to shared parenting at the time of the child's birth. We therefore reverse the district court's judgment and the VOL. 312 SUPREME COURT OF KANSAS 369

In re W.L. panel decision affirming it; we remand to the district court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

E.L. and M.S. began a same-sex romantic relationship in January 2012 and began living together shortly thereafter. The two began talking about children early, and both expressed a desire to be mothers at some point. In October 2012, E.L. paid for a membership at a sperm bank. And, the next month, she purchased eight vials from a donor through the bank. On E.L.'s third attempt at artificial insemination, in May 2014, she became pregnant. During the pregnancy, announcements and a baby shower and social media posts appeared to treat both women as expectant mothers. E.L. would eventually testify that, to the extent these communications and behaviors could be construed to mean she was treating M.S. as a parent, she was merely attempting to include M.S. and expressing a hope that M.S. would eventually step into a parental role. In December 2014, E.L. gave birth to twin boys, W.L. and G.L. E.L. listed herself as mother on the birth certificates. M.S. was not listed as a parent on the certificates, but the twins' last names were hy- phenates composed of E.L.'s and M.S.'s last names. E.L. would testify that she used M.S.'s name to create the twins' last name to make M.S. feel included; she would later unilaterally drop M.S. from the babies' names. E.L. and M.S. had not entered into a written coparenting agreement at the time of the twins' birth and never did. The couple remained together after the twins' births for about nine months. The relationship ended after M.S. had a liaison with the boyfriend of E.L.'s sister, but the couple continued to reside together until January 2016. At that time E.L. moved with the twins from the couple's shared home in Kansas City to her parents' home in Pittsburg. Not long after, M.S. moved in with her parents, who also lived in Pittsburg. E.L. allowed M.S. to keep the twins every other weekend and, eventually, one night during the week. Once in Pittsburg, both E.L. and M.S. began new long-term relationships with others.

370 SUPREME COURT OF KANSAS VOL. 312

In re W.L.

In September 2017, M.S. was considering moving back to Kansas City, believing E.L. would not live permanently in Pitts- burg. Through a series of text messages, M.S. arranged to meet with E.L. so that they could discuss M.S.'s role in the twins' lives. At the meeting, M.S. asked E.L. about obtaining legal recognition as a guardian or parent. E.L. rejected M.S.'s request. In early October 2017, M.S. filed a "Petition for Determina- tion of Parentage" in Crawford County District Court. The petition alleged that M.S. had stood in the role of a parent, along with E.L., since the twins' conception, and that "it would be in the best interest of the minor children that the Court make a determination of parentage, custody, and child support." E.L.'s answer denied that M.S. was a parent of the children. Late the next month a senior district court judge appointed a guardian ad litem to represent the twins and to offer an opinion on whether it was in their best interests to establish parentage of M.S. The same day, the judge entered a temporary visitation order. E.L. had cut off M.S.'s visitation after the petition was filed. E.L. married C.H. in January 2018, having lived with her and the twins for several months beforehand. The guardian ad litem filed her report in early February 2018, including the following: E.L. had encouraged a relationship between the twins and M.S., but the strength of the relationship was disputed. "It is clear that [E.L.] has performed the role of mother and had inconsistent involvement and support from [M.S.]." M.S. wanted to continue visits with the twins and provided them affec- tion, but it appeared she had not been involved in making major decisions for the children and did not initiate any legal action until 22 months after the couple's separation. M.S. paid for some medical care, shared day care costs for a time, and provided clothes, toys, and diapers for the twins while they were in her care. M.S. and E.L. had been able to maintain an amicable relationship until M.S.'s filing of the parentage action. Since then, the parties continued to communicate in a businesslike manner. The twins would be "well cared for" by E.L. if M.S. is not declared the children's legal mother; E.L. had "primarily cared for them all along." The guardian ad litem ultimately concluded:

VOL. 312 SUPREME COURT OF KANSAS 371

In re W.L.

"There is nothing in writing and no evidence that the parties had agreed on sharing custody of the children. [E.L.] did not agree to share custody with [M.S.]. . . . . "[M.S.] was in favor of [E.L.]'s pregnancy. She was excited for the birth of the children. She has spent time with them and cares for them, but she has not assumed the role of a mother. She has not established her own housing for the children. She has discussed moving to Kansas City with her girlfriend[—]far away from the children. She has not provided financial support to the children while they are in the care of [E.L.]. It would not be in the best interests of the children to determine maternity and establish [M.S.] as their legal mother."

In late April 2018, the district judge heard two days of testimony. M.S., M.S.'s parents, and M.S.'s current girlfriend testified for M.S. E.L., two of the boys' nannies, E.L.'s mother, and E.L.'s wife testified on E.L.'s behalf. M.S. testified that she and E.L. made a joint decision to have children and to both be parents to them. M.S. said she had taken an active parenting role in the children's lives while she and E.L. were together and continued to do so after the separation by taking care of the children every other weekend. M.S. provided financial records of her expenses related to raising the boys, and she said she had been consulted about various parenting decisions. She conceded, however, that E.L. made the final decisions. It was undisputed that M.S. had been charged with driving while intoxi- cated after the children were born; she also admitted that alcohol consumption contributed to her "bad decision" to engage in the liaison that led to the couple's breakup. E.L. testified that, although both she and M.S. discussed having children, she ultimately made the decision to get pregnant. Af- ter learning of the pregnancy, E.L. said, her life immediately focused on raising the children. M.S., on the other hand, continued her very active social life, including going to bars and clubs with friends. The night before the twins were born, for example, M.S. attended a party with friends. E.L. admitted she had encouraged M.S. to go to the party but did not expect M.S. would actually do so. E.L. also acknowledged that M.S. paid for half of day care expenses for the children, even after the couple split. But she said she had always told M.S. the payments were appreciated but not obligatory. E.L. said she alone did the research necessary to make decisions about the children and did not typically discuss these 372 SUPREME COURT OF KANSAS VOL. 312

In re W.L. matters with M.S. E.L. said she often consulted the children's nanny for advice rather than seeking M.S.'s input. During closing arguments, the guardian ad litem reiterated her opinion that a determination of M.S.'s maternity was not in the children's best interests. "I don't think that the evidence supports the conclusion that she's asking the Court to make. I'm not sure that the law supports that relief that she's seeking." The guardian ad litem understood that M.S.

"has a relationship with the children, that she has paid for things for the children, and a substantial amount of things. "But it doesn't appear to me that she ever took on a mother role in the same way that [E.L.] did. [E.L.] has made the major decisions. She has been the primary caregiver and done the things that a—that a mother would do. It doesn't seem to me that [M.S.] has shared in the hard parts of being a parent in the same way that [E.L.] has and that [M.S.] has not changed her life the way a parent would and assumed that role."

The closing argument from M.S.'s counsel framed the issues before the district judge in language mostly echoing K.S.A. 2019 Supp. 23-2208(a) and (b), provisions in the KPA. Counsel said that, first, the judge must decide whether M.S. established a presumption of parentage by a preponderance of the evidence; then, whether E.L. had rebutted the presumption by clear and convincing evidence; and, finally, whether M.S. had nonetheless carried her burden of going forward with clear and convincing evidence. Counsel relied on evidence that M.S. had been present at E.L.'s obstetrics appointments and ultrasound examinations, that she had participated in the baby shower, and that she had been present at the birth. She also emphasized that M.S. had been shown as one of the babies' mothers on pregnancy and shower announcements and had provided an "extreme amount" of financial support to cover medical and day care expenses. Counsel argued that M.S. had met her statutory burden to show she had "notoriously" acknowledged parenthood. In her view, E.L. presented "zero evidence" that M.S. was not a parent before events that immediately proceeded M.S.'s filing of her petition. E.L.'s counsel argued in closing that M.S. never stepped into the role of a parent, saying: "Her lifestyle didn't change after she VOL. 312 SUPREME COURT OF KANSAS 373

In re W.L. learned of the pregnancy, nor did it change after the babies were born." Counsel minimized the strength of M.S.'s evidence:

"If the situations were reversed, if [E.L.] had filed an action to come here and say 'hey, I want to establish maternity. [M.S.], you are going to start paying me child support, I'm going to determine you to be a mother[,'] this probably would have been kicked out on a motion to dismiss for failure to state a cause of action."

The district judge issued a Decision and Order Denying Par- entage of M.S. on May 22, 2018. He said that he found E.L.'s testimony "more believable, credible, and worthy of weight than the testimony of [M.S.], particularly where the [two] were in conflict," and he outlined the same KPA shifting evidentiary burdens that had been articulated during the closing argument of M.S.'s counsel. Like M.S.'s counsel, the judge described M.S.'s ultimate burden as demanding clear and convincing evidence. Despite this nod to the KPA, the judge stated that the Act's framework was not tailored to the situation before him and thus turned to caselaw, adopting as the governing legal rubric a de facto parenthood test from Wisconsin. See In re Custody of H.S.H.-K., 193 Wis. 2d 649, 658, 533 N.W.2d 419 (1995).

"Based upon the evidence in this case the court finds that one way [a] presumption [of parentage] may be rebutted is if the biological or adoptive parent can demonstrate, by clear and convincing evidence, that the putative parent has never met the criteria for a functional, psychologic, or de facto parent. Presuming a well-reasoned definition and parenthood test which sets forth the appropriate factors of a functional or de facto parent failure to demonstrate at least minimal qualifications would generally indicate the lack of a relationship worthy of legal sanction. . . . . "'[T]o demonstrate [the] existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.'"

374 SUPREME COURT OF KANSAS VOL. 312

In re W.L.

Applying the Wisconsin test to the evidence before him, the judge wrote:

"The evidence is more indicative of petitioner being a ride along than an active participant in the determination to form a parent-child relationship. In evaluating her 'acknowledgment' if we are forced to use that term as it appears in K.S.A. [23-2208(a)(4)] there are 3 significant actions which one might construe as true participation as a parent. One is her financial contributions which are un- controverted and speak for themselves. "The 2nd is the fact that she moved to Pittsburg[], after the respondent re- located, in what she described as a move made following 'her children.' Frankly the court is very skeptical that this is the entire motivation. The events that pre- cipitated the destruction of the relationship between the petitioner and the respondent and the probable social and or emotional ramifications just as easily might have made the petitioner's parents' home a safe harbor in what was certainly a typhoon of personal destruction. "Finally, there is the fact that the children did spend 'visitation' time at petitioner's parents' home while petitioner was most probably present at least a majority of the time. The court finds most credible the testimony of the respondent suggesting that she only felt the children were safe there because of the petitioner's parents with whom the respondent apparently had a relatively close relationship. The degree to which this is more appropriately classified 'grand-parent visitation' than 'parental access' is an implicit question raised by the evidence and reasonable inferences from the GAL recommendation. Particularly telling is the concern expressed by the respondent upon learning that the petitioner had taken the children outside of the state of Kansas. The restrictions the respondent would have at least preferred is more indicative she considered the petitioner something far less than a parent. In the days preceding the filing of this action the overall landscape that must have been obvious to the petitioner is equally obvious to the court. The respondent is now married. From the evidence the respondent's wife is functioning as a parent, more so than the petitioner despite the significant dis- parity in the amount of time respondent[']s new partner has spent with the children. Petitioner cannot make a credible claim that she was prevented from being a parent, especially earlier [in] the relationship, because of the responsibility she is allowing [respondent's] wife to assume. With the understanding of the respondent and her wife intend to relocate the petitioner initiates contact with the respondent regarding her plans for the future. The respondent's immediate response is most indicative of her intent and attitude throughout the relationship. She felt obligated to clarify to the petitioner that she was not considered a parent. Undoubtedly, it is the unspoken trajectory of the respondent and her wife to have their family unit solidified through a probable step parent adoption proceeding. Although this might operate as a motive to shade or color her testimony in a more favorable light the court is convinced that respondent remains the most credible source of evidence when it comes to the parties' intent and their interactions. Only when it became apparent, after 3 years of opportunity, that the petitioner and her parents might be deprived contact with the children was this action filed. VOL. 312 SUPREME COURT OF KANSAS 375

In re W.L.

"Credible evidence potentially establishing a parentage presumption is the fact that the respondent originally, unilaterally, listed the children's names with a hyphenated version of both the petitioner and respondent's last names on the birth certificate. . . . [T]his action has since been undone. The testimony of the respondent is that this act along with several other acts which might be construed as a mutual intent to parent were all done in a futile attempt to hold out until the petitioner made a sincere commitment toward both the then existing family unit and parentage. Before the petitioner ever came into that state of mind the respondent came to realize the futility of the hopes that she placed in the petitioner."

The judge then explained his ruling, using the Wisconsin test to measure whether E.L. had rebutted by clear and convincing evidence any KPA presumption that may have arisen in favor of M.S.

"If the petitioner has established by a preponderance of the evidence a presumption under the Kansas parentage act the respondent has convinced the court by clear and convincing evidence that the petitioner fails to meet the requisite criteria of a psychological, de facto, or functional parent. In making this determination the court has looked closely at the 4 factors set out in Custody of H.S.H.- K. The period where the petitioner appeared significantly and sincerely involved in a material and substantial fashion was during the period in which she enjoyed parental access only because the court directed the parties to allow for temporary visitation while the action was pending. It is inequitable to allow that period to control the court's decision or have any major influence upon the court in determining if the petitioner functioned[, o]verall, as a de facto parent. "As concerns the 'consent' of the biological parent, the court is convinced that there was a time in which the respondent truly hoped that the petitioner would focus her attention on the family unit and act in a fashion expected of one who truly intends to assume the responsibilities of being a parent. The fact that the parties never married when that was available in other states, the fact that they didn't marry when that was available in Kansas, the fact that although they purchased rings they were never picked up from the jeweler, the fact that there were never any written instruments regarding artificial insemination or parenting responsibilities, and the other evidence described above all indicate to this court that there was never really a 'meeting of the minds' so to speak regarding parentage. "Finally, the court notes that there is evidence to suggest that a parental figure is in a position of psychological bonding with the children. That is the respondent's current wife. The court is not making this decision based on which is the better parent or potential parent. It is important to note that there is evidence that the respondent has presented which suggests this bonding has taken place between the children and her wife. This establishes the children are of an age where they are subject to emotional injury if their relationship with a 'psychological parent' is being severed. It also establishes that if there is some indication 376 SUPREME COURT OF KANSAS VOL. 312

In re W.L. that if there was a bonded and substantial relationship of a parental nature between the petitioner and the respondent evidence of the same could have been presented to the court and it should have been apparent to the Guardian ad litem. Other than the self-serving testimony of the petitioner there is no evidence of such bonding and the credible evidence suggests that it is more detrimental for the children to visit with the petitioner than to not. "The petitioner has not overcome the respondent[']s clear and convincing evidence rebutting any statutory presumption. In addition to these findings the court makes this specific finding that it appears by clear and convincing evidence that it is not in the children's best interests to establish a parent-child relationship between the petitioner and the children. . . .

"The petition for parentage is therefore denied."

M.S. appealed to our Court of Appeals, raising four challenges: (1) the district judge erred by ruling M.S. did not meet her burden to show she was a parent; (2) the district judge erred by using "best interests" as the standard for determination of parentage; (3) E.L. failed to present sufficient evidence to rebut M.S.'s presumption of parentage; and (4) the district judge's consideration of and reliance upon the parties' lack of marriage, lack of coparenting agreement, and M.S.'s personal relationships and actions violated equal protection. In response, E.L. argued that the district judge correctly applied the shifting burdens provided in the KPA and did not err by insisting that M.S.'s acknowledgment of parenthood under K.S.A. 2019 Supp. 23-2208(a)(4) meets the test for a "psychological, de facto, or functional parent" under Wisconsin caselaw. In E.L.'s view, the district court judge was entitled to make credibility assessments and substantial evidence supported the judge's factual findings and, in turn, his conclusions. She also argued that M.S. could not contest the guardian ad litem's conclusions on the twins' best interests or attempt to limit the relevance of those conclusions, because M.S. had been in favor of the guardian's appointment in the first place. E.L. saw no equal protection violation in what she asserted was the KPA's distinction between those with a biological connection to a child and those without it; the two groups do not qualify as similarly situated, the first step in equal protection analysis. The Court of Appeals panel affirmed the district judge's decision. The panel set out the shifting evidentiary burdens under the KPA, correctly stating that, if M.S.'s presumption was rebutted by E.L., "the burden of proof shifts back to [M.S.] to go forward with the evidence." In re W.L., 56 Kan. App. 2d at 969 (citing K.S.A. 2018 Supp. 23-2208[b]; Kline v. Holmes, No. 118,067, 2018 WL 1659927, at *5-7 [Kan. App. 2018] [unpublished opinion]). It noted that the district judge's findings of fact were to be reviewed by substantial competent evidence while his conclusions of law would be reviewed de novo. 56 Kan. App. 2d at 969-70. The panel criticized the district judge for failing to reach a firm conclusion on whether M.S. carried her initial burden to demonstrate the existence of a presumption of parentage under K.S.A. 2019 Supp. 23-2208(a)(4). But it held that any error would be harmless because the judge assumed for the sake of argument VOL. 312 SUPREME COURT OF KANSAS 377

In re W.L. that M.S. met that standard and then properly moved to the next question under the statute: Did E.L. rebut that presumption by clear and convincing evidence? 56 Kan. App. 2d at 971; see K.S.A. 2019 Supp. 23-2208(b). On this question, the panel observed first that E.L., as the twins' biological mother, had a fundamental constitutional right to raise her children. In re W.L., 56 Kan. App. 2d at 972 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 [2000]). Without a written coparenting agreement or, at a minimum, a written waiver of E.L.'s constitutional rights, the panel held that E.L. had met her burden to overcome the presumption in favor of M.S. The panel predicted that this court would not be willing to recognize an oral agreement to coparent as binding when one same-sex partner was the birth mother of a child conceived through artificial insemination and the other had no actual biological or adoptive relationship to the child. 56 Kan. App. 2d at 974-75. Alternatively, the panel held, even if no written coparenting agreement would be required to make M.S. a parent, the district judge's decision that E.L. successfully rebutted M.S.'s presumption under K.S.A. 2019 Supp. 23- 2208(a)(4) by showing she had not waived her Troxel rights and agreed to shared parenting of the twins with M.S. was a pure finding of fact supported by substantial competent evidence. 56 Kan. App. 2d at 976. The panel noted that some evidence was undisputed: The parties never married; M.S. never attempted to adopt the twins; and she never inquired about being the twins' guardian until nearly three years after they were born. Then, viewing the rest of the evidence in the light most favorable to E.L., and giving her the benefit of the district judge's explicit credibility judgment in her favor, the panel stated: "In addition to the undisputed evidence in the record, there is substantial evidence upon which a reasonable person could find that M.S.'s involvement with the children was primarily incidental rather than sharing in the responsibilities of parenting. As the district court recognized, there was 'a time in which [E.L.] truly hoped that [M.S.] would focus her attention on the family unit and act in a fashion expected of one who truly intends to assume the responsibilities of being a parent.' However, after hearing all the evidence, the district court concluded that E.L.'s hopes remained unfulfilled. We find this to be a reasonable inference from the evidence presented. "Ultimately, the district court found the testimony of E.L. to be more credible than that of M.S., and we cannot replace our judgment for that of the district court regarding questions of fact. Based on our review of the record in a light most favorable to the prevailing party below, we conclude that substantial competent evidence supports the district court's factual findings and that the inferences drawn from the evidence by the district court were reasonable. We also conclude that there is substantial competent evidence in the record to support the district court's finding that E.L. rebutted M.S.'s presumption of parentage by clear and convincing evidence. Lastly, we conclude that the district court's determination that M.S. was unable to overcome E.L.'s clear and convincing evidence regarding parentage is supported by substantial competent evidence in the record." 56 Kan. App. 2d at 976. The panel also agreed with E.L. that M.S. could not challenge the district judge's consideration of the twins' best interests because M.S. had sought the 378 SUPREME COURT OF KANSAS VOL. 312

In re W.L. appointment of the guardian ad litem. That said, the panel nevertheless voiced an opinion on the merits of whether best interests could ever be a factor in a parentage action such as this. It held that such consideration in any case affecting a parent and child relationship would not qualify as error. Even if not strictly necessary under the KPA, it would be consistent with Kansas law's general emphasis on child welfare. 56 Kan. App. 2d at 977-78. Finally, the panel also followed E.L.'s lead on M.S.'s equal protection challenge, holding that M.S. could not show that she was similarly situated to a person with an actual biological or adoptive connection to a child. This KPA distinction between her and such a person is, the panel said, "not based on marital status, sexual orientation, or gender" and did not violate equal protection. 56 Kan. App. 2d at 979-80. M.S. filed a petition for review to this court of two issues: Whether the panel erred by requiring M.S. to have a written agreement to establish parentage, and whether the panel erred by "finding that the lack of a written co-parenting agreement is more significant than the actions of a biological mother acknowledging that her partner is a parent of her children and acting in accordance with that acknowledgement?" This court granted review, and both parties filed supplemental briefs.

M.S.'s supplemental brief opened by restating her issues.

"Issue I: Did the Court of Appeals err in finding that the [Assisted] Reproductive Technology (ART) statutes apply to non-married partners?

"Issue II: Is the Court of Appeal[s'] requirement of a written agreement to coparent between non-married partners raising children an incorrect interpretation of the KPA and of case law?

"Issue III: Is the Court's use of 'best interests' as the legal standard to rebut a presumption of parentage when there are no other putative parents an improper analysis of the KPA and case law?

"Issue IV: Did the Court of Appeal[s] err in finding that the lack of a written coparenting agreement is more significant than the actions of a biological mother acknowledging that her partner is a parent of her children and acting in accordance with that acknowledgement, when the parentage act makes no such requirement?

"Issue V: Does the Court of Appeals' application of the KPA in this case violate M.S.'s Fourteenth Amendment right to equal protection under the law?"

E.L.'s supplemental brief argued that the first, third, and fifth issues set out in M.S.'s supplemental brief were "new issues not presented or fairly included in her Petition for Review." But E.L. did not challenge M.S.'s apparent belief that the Court of Appeals panel had ruled that the KPA required a written coparenting agreement VOL. 312 SUPREME COURT OF KANSAS 379

In re W.L. or a written waiver of E.L.'s Troxel rights. Instead, she argued that such a requirement was in keeping with other Kansas statutes and state and federal caselaw. E.L. also argued that the KPA would recognize only a biological or adoptive parent-child relationship, treating the presumptions under K.S.A. 2019 Supp. 23-2208(a) as tools to ferret out an actual biological link rather than legislative authorization to employ legal fictions satisfying a requirement of biological parenthood. She argued that this court's decision in Frazier v. Goudschaal, 296 Kan. 730, 295 P.3d 542 (2013), should not be read to permit a woman in M.S.'s position to take advantage of "notorious acknowledgment," the presumption in K.S.A. 2019 Supp. 23-2208(a)(4); and, even if it were so read, the presumption should be rebutted "automatically" when there is no actual biological or adoptive link. In E.L.'s view, "The presumption in K.S.A. 23-2208(a)(4) cannot be 'practicabl[y]' applied to M.S. because it would have been impracticable for E.L. and M.S. to naturally con- ceive the child[ren] and both be the children's biological mothers." E.L.'s supplemental brief also reiterated her Court of Appeals argument, accepted by the panel, that M.S. could not complain about the district judge's consideration of the twins' best interests, given M.S.'s request for appointment of the guardian ad litem. She also agreed with the panel that the district judge committed no error by considering best interests and took the position one step farther. She asserted that the consideration of the twins' best interests was imperative—given the district judge's finding that M.S. was never a psychological, de facto, or functioning parent of the children and that E.L.'s current wife was. Repeating a statement her counsel had mentioned in passing in the district court, E.L. said this factual scenario raised the possibility of competing presumptions under K.S.A. 2019 Supp. 23-2208(c), which reinforced the district judge's decision that E.L. had rebutted the presumption invoked by M.S. On the merits of M.S.'s equal protection claim, E.L. insisted that M.S. was being treated no differently than any unmarried heterosexual partner of E.L. would be treated under the KPA. At oral argument before this court, counsel for M.S. argued in essence that the district judge lost sight of the requirements of K.S.A. 2019 Supp. 23-2208(a)(4). The district judge, in particular, erred by permitting E.L. to admit irrelevant evidence related to whether M.S. was a good parent to the twins or a good partner to E.L., rather than 380 SUPREME COURT OF KANSAS VOL. 312

In re W.L. whether she had notoriously recognized her maternity, the only question spurred by the statute. Then the district judge erred by relying on the same kind of evidence and absence of a written coparenting agreement to rule that E.L. had rebutted M.S.'s presumptive parenthood. The district judge's demand that M.S. meet the Wisconsin de facto parenting test, demonstrate E.L.'s consent to shared parenting, and prove that a declaration of her own parentage was in the best interests of the twins compounded his initial misinterpretation and misapplication of the presumption statute. The Court of Appeals panel, in counsel's view, erred by failing to correct the district judge's multiple mistakes. Counsel for E.L. argued to this court that the district judge correctly based his decision on the absence of a coparenting agreement between the parties, E.L.'s decision to give her parents rather than M.S. backup legal responsibility for decision-making for the twins, M.S.'s failure to meet the Wisconsin de facto parent test, and E.L.'s spouse's assumption of parenting duties. When challenged to identify how that list compared to the KPA's language, counsel suggested the Act permitted the presumptions to operate only to recognize a pre-existing, actual biological link between parent and child. Without such a link, a person in M.S.'s position must show that the biological parent entered into a written coparenting agreement with him or her, as the couple had in Frazier. Without such an agreement, he argued, the biological parent's constitutionally protected right to care, custody, and control of his or her children would be violated.

DISCUSSION

We address preservation first.

This case is similar to In re M.F. because the partner of the birth mother has had some variation in her phrasing of the issues before the district court, the Court of Appeals, and this court. Nev- ertheless, we are satisfied that the two challenges in the petition for review before us, her second and fourth issues in her supplemental brief, her first three challenges before the Court of Ap- peals, and her arguments in the district court have been sufficient to preserve the controlling legal question we must answer: Did the district judge and the Court of Appeals apply the wrong legal standards in evaluating the evidence before them on the K.S.A. VOL. 312 SUPREME COURT OF KANSAS 381

In re W.L.

2019 Supp. 23-2208(a)(4) presumption of maternity M.S. had claimed and any other governing law? We therefore move to the merits of that question. In today's In re M.F. decision, 312 Kan.322, Syl. ¶ 1, we hold that the same-sex partner of a woman who conceives through artificial insemination may establish a legal fiction of biological parentage by asserting the KPA presumption of maternity in K.S.A. 2019 Supp. 23-2208(a)(4) (notorious recognition of maternity). See K.S.A. 2019 Supp. 23-2220 (KPA provisions applicable to father and child relationship apply, insofar as practicable, to determine existence of mother and child relationship.). She bears the burden to demonstrate the initial presumption. If she succeeds, the burden shifts to the party opposed to establishment of the relationship to rebut the presumption by clear and convincing evidence, by court decree establishing paternity or maternity of someone other than the presumed parent, or under K.S.A. 2019 Supp. 23- 2208(c). Subsection (c) provides that, if two conflicting presumptions arise, "the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child" prevails. If a presumption is rebutted, the burden shifts back to the party seeking establishment of the parent and child relationship, who must go forward with the evidence. K.S.A. 2019 Supp. 23-2208(b). The ultimate burden placed on the party seeking court recognition of the relationship can be discharged by a preponderance of the evidence. See In re M.F., 312 Kan. 322, Syl. ¶ 4. Today's In re M.F. decision also makes clear that it is not necessary that a written or oral coparenting agreement exist for a woman in M.S.'s position to establish an initial presumption of maternity under K.S.A. 2019 Supp. 23-2208(a)(4) or to prevail on her ultimate burden of proof. She need only show she has notoriously recognized maternity and the rights and duties attendant to it at the time of the child's birth. In addition, in keeping with Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the court must ultimately be persuaded that the birth mother, at the time of the child's birth, consented to share her due process right to decision-making about her child's care, custody, and control with the woman who is claiming parentage under the 382 SUPREME COURT OF KANSAS VOL. 312

In re W.L.

KPA. Evidence in support of either party's position may be direct or circumstantial, testimonial or documentary. Under In re M.F., we must reverse the district court's judgment in this case. Although the district judge appreciated the burden-shifting design of K.S.A. 2019 Supp. 23-2208(a), (b), and (c), he did not explicitly apply each step of it in the manner that In re M.F. has now outlined and we require. He also incorrectly recited that the ultimate burden of a person seeking to establish a parent and child relationship under the KPA—that of "going forward with the evidence"—must be borne by clear and convincing evidence. In fact, this burden calls on the party to go forward with evidence sufficient to prove the relationship only by a preponderance of the evidence. The district judge also erred in demanding a "meeting of the minds" or at least an oral coparenting agreement between the parties, rather than a combination of M.S.'s notorious acknowledgement of maternity and E.L.'s consent to share her Troxel parenting rights as of the time of the twins' birth. He applied a Wisconsin test for de facto parenting rather than remaining focused on the actual KPA question before him. The district judge also apparently relied heavily on evidence critical of M.S.'s performance as a partner and a parent after the twins' birth. As we make clear in In re M.F., the quality of her partnering with E.L. was not necessarily material to the statutory and constitutional questions a district judge must answer. Treating this sort of evidence as functionally dispositive was error. It may be, however, that the quality of the parenting of a woman in M.S.'s position can be circumstantially relevant to what she understood about the meaning of her K.S.A. 2019 Supp. 23-2208(a)(4) acknowledgment of maternity at the time of a child's birth. As K.S.A. 2019 Supp. 23-2205 states, a parent and child relationship means "the legal relationship . . . incident to which the law confers or imposes rights, privileges, duties and obligations." An acknowledgment of maternity with no appreciation of the benefits and burdens it distributes can be legally significant, just as one with such an appreciation can be legally significant. We stress that VOL. 312 SUPREME COURT OF KANSAS 383

In re W.L. this is not the same thing as allowing a birth mother in E.L.'s position veto power over a partner's parentage pre-existing maternity after a child's birth. This point bears emphasis on the record in this particular case, because of E.L.'s repeated statements about her attitude toward M.S.'s parentage shifting over time. She repeatedly expressed her hope—apparently both before and after birth—that M.S. would "step up." In re M.F. makes clear that a birth parent needs to make a decision and be held to it, not given the power to change his or her mind whenever the bloom is off the rose of romance or it otherwise suits. A child is born with one legal parent or two. His or her birth mother does not get to change that reality once it arises by operation of law. We also must comment on the influence E.L.'s later marriage and the helpfulness of her current wife appears to have played in the district court's judgment. Our reading of the record before us leads us to believe that E.L.'s counsel never truly pursued the possibility that this case may involve competing presumptions under K.S.A. 2019 Supp. 23-2208(c). See State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015) (Supreme Court Rule 6.02[a][5] [2020 Kan. S. Ct. R. 34] requires explanation why issue not raised below is nonetheless properly before court on appeal); see also State v. Boysaw, 309 Kan. 526, 542-43, 439 P.3d 909 (2019) (argument deemed waived, abandoned for failure to brief issue). Yet the district judge relied in part on what he believed to be the current wife's positive impact on the twins' lives. We ap- plaud the district judge's compassion on this point; no member of this court wishes anything less for these boys as a function of their birth mother's current relationship. But, unless E.L. is trying to establish a competing presumption in favor of her wife's maternity under K.S.A. 2019 Supp. 23-2208(c), her wife and her relationship to the twins is irrelevant to whether M.S. can establish her pre-existing maternity under K.S.A. 2019 Supp. 23-2208(a)(4) and (b). Like the district court, our Court of Appeals panel focused erroneously on the parties' lack of an oral or written coparenting agreement, on the absence of a full waiver of E.L.'s Troxel parenting right rather than a consent to share it at the time of the twins' 384 SUPREME COURT OF KANSAS VOL. 312

In re W.L. birth, and the district judge's factual findings on the deficiencies in M.S.'s parenting performance. It thus reinforced rather than cor- rected the several legal deficiencies in the district judge's judgment. Thus its decision must also be reversed. This case must be remanded to the district court for further proceedings consistent with the rules laid out today in In re M.F., 312 Kan. 322 (No. 117,301, this day decided), and the criticisms outlined above. As a final note, to the extent the parties have asked us to consider independent arguments based on the merits of their equal protection and best interests arguments, we do not reach those issues today. It is unnecessary to do so for us to dispose of this case at this stage.

CONCLUSION

We reverse the judgment of the district court and the decision of the Court of Appeals affirming that judgment.

We remand to the district court for further proceedings consistent with this opinion. As in In re M.F., on remand, the district judge will be free to allow submission of additional evidence by the parties if he deems such evidence necessary to conduct the legal analysis we have outlined. This evidence may extend to proof of the existence or nonexistence of competing presumptions.

HENRY W. GREEN, JR., J., assigned.1 STEVE LEBEN, J., assigned.2

1REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was appointed to hear case No. 119,536 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the retirement of Justice Lee A. Johnson.

2REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was appointed to hear case No. 119,536 under the authority vested in the Supreme Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy of the court by the retirement of Chief Justice Lawton R. Nuss.

VOL. 312 SUPREME COURT OF KANSAS 385

In re W.L.

* * *

STEGALL, J., dissenting: The lynchpin of the holdings in today's twin decisions in In re M.F., 312 Kan. 322 (No. 117,301, this day decided), and In re W.L., 312 Kan. 367 (No. 119,536, this day decided), is the majority's self-described "legal fiction" that a person can be a "biological parent" without sharing any parental DNA with the putative child. While this is certainly a fiction, it can hardly be described as a "legal" one. Indeed, under any accepted mode of statutory interpretation, the notion that the plain language of the Kansas Parentage Act means that a person not biologically related to a child can "become" a biological parent is untenable. I have demonstrated as much previously in In re Adop- tion of T.M.M.H., 307 Kan. 902, 920-38, 416 P.3d 999 (2019) (Stegall, J., concurring and dissenting). The majority rules that a person "may establish a legal fiction of biological parentage by asserting the Kansas Parentage Act (KPA) presumption of maternity in K.S.A. 2019 Supp. 23- 2208(a)(4) by notoriously recognizing her maternity." 312 Kan. 367, Syl. ¶ 1. As I explained in T.M.M.H., the key to understanding the statutory scheme—and K.S.A. 2019 Supp. 23-2208(a)(4) in particular—is to understand the plain meaning of the words paternity, maternity, and recognize or acknowledge:

In re W.L. public recognition of a child as his own.'" State ex rel. Secretary of DCF v. Smith, 306 Kan. 40, 49, 392 P.3d 68 (2017). One can only publicly recognize a fact that preexists the act of recognition. Recognition does not give birth to the fact." 307 Kan. at 929 (Stegall, J., concurring and dissenting).

Contrary to this plain meaning, the majority fashions a statutory scheme under which a biological relationship can be con- jured—ex nihilo—by the power of an incantation. The legal rule at work here is little more than "saying it makes it so." And that is no rule at all. The majority tries to rally statutory support for its legal fiction of non-biological biology by pointing to the artificial insemination provisions of the KPA. The majority suggest that those provisions "work together to create complementary fictions: one that the husband of the woman undergoing the procedure is the actual biological father of the child produced, see K.S.A. 2019 Supp. 23-2302, and one that the sperm donor is not the actual biological father. See K.S.A. 2019 Supp. 23-2208(f)." In re M.F., 312 Kan. at 337.

But this, too, is incorrect. In fact,

In re W.L. form of adoption. This is why the KPA explicitly uses the legal rules governing adoptions to govern the consent required by the ART scheme. See K.S.A. 2019 Supp. 23-2303. It is why courts can refer to the parent child relationship between the non-biological parent of a child produced by ART and the child as a "de facto adoption." In re L.C., No. 120,072, 2020 WL 110866, at *6 (Kan. App. 2020) (unpublished opinion). Once the majority has arrived at its "declared parentage" rule, the rest of the opinion is sheer policy making. How is this rule supposed to be applied? Certainly the statute doesn't tell us. What about the actual biological parents and what they want? What about the possibilities of fraud, or mere changes of whim? Does the magic that creates a biological parent out of nothing have to be set down in writing? The majority recognizes these are vexing problems, and pro- ceeds to do its best to provide workable answers. But of course solving these policy questions is not this court's job. See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008) ("It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy; it is the duty of this court to safeguard the constitution."). My fear is that in the process, we have continued down the dangerous road we set out on in Frazier. Just as in T.M.M.H., I believe today's majority simply believes "that the responsibility to care for children can be shared with people who are neither biological nor adoptive parents and the law ought to find a way to recognize this when it is in the best interests of the child." In re Adoption of T.M.M.H., 307 Kan. at 937 (Stegall, J., concurring and dissenting). Unfortunately, the legal scheme we have created now permits the commodification of children:

388 SUPREME COURT OF KANSAS VOL. 312

In re W.L.

Today, we go even a step further and suggest that the third party's legal status as a parent can be brought into existence by the mere declaration of that third party, and such a declaration will be enforced even against a biological parent's rights by the mere showing of "implicit . . . proof by . . . circumstantial evidence . . . [of] an intent to share." In re M.F., 312 Kan. at 351-52. But children are not cookies, and sharing is far too elusive a concept on which to establish such bedrock relationships as those which exist between parents and their children.

As I wrote in T.M.M.H.,

"Long ago, Justice Brewer, writing for this court, articulated the fundamental manner in which the parent-child relationship is rooted in the 'law of nature.' Chapsky v. Wood, 26 Kan. 650, 652 (1881). As such, the positive law protects what we have come to call the 'parental preference' which is described as 'a fundamental right . . . to the care, custody and control of [the parent's] child.' . . . (quoting Sheppard v. Sheppard, 230 Kan. 146, 154, 630 P.2d 1121 [1981]). Jus- tice Brewer recognized, however, that this parental preference 'is not like the right of property' which would render 'a child . . . like a horse or any other chattel, subject-matter for . . . gift or contract.' Chapsky, 26 Kan. at 652-53." 307 Kan. at 936 (Stegall, J., concurring and dissenting).

We have abandoned these sound principles at great risk to vulnerable children across our state. As a final observation, I am struck by the fact that while I have made clear my disagreement with the majority's consistent interpretation of the KPA—in Frazier, T.M.M.H., and in today's cases—the Legislature has said nothing. It is true that legislative silence is a weak indicator of correct judicial interpretations. State v. Hambright, 310 Kan. 408, 419, 447 P.3d 972 (2019) ("'Legisla- tive inaction may not be the strongest indicator of specific legislative purpose, but it is an indicator [Citations omitted].'"). None- theless, legislative silence is a practical acquiescence if not a legal one. If the legislative branch does not agree with this court's interpretation of the KPA, it has a constitutional obligation to act. Oth- erwise, the carefully balanced separation of powers intended by our constitutional structure cannot properly function. Sierra Club v. Mosier, 305 Kan. 1090, Syl. ¶ 8, 391 P.3d 667 (2017) ("Under the separation of powers doctrine, determination of appropriate policy must be left to the legislative and executive branches of VOL. 312 SUPREME COURT OF KANSAS 389

In re W.L.

Kansas government, and courts are limited to the exercise of judicial power in interpreting and applying the law"); Solomon v. State, 303 Kan. 512, 545, 364 P.3d 536 (2015) (Stegall, J., concurring) ("when 'the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it'").

For these reasons, I dissent.

390 SUPREME COURT OF KANSAS VOL. 312

State v. Daino

No. 120,824

STATE OF KANSAS, Appellant, v. GIANNI MASSIMO DAINO, Appellee.

475 P.3d 354

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Search and Seizures—Prohibition of Unrea- sonable Searches and Seizures under Constitutions. The Fourth Amend- ment to the United States Constitution and section 15 of the Kansas Consti- tution Bill of Rights prohibit unreasonable searches and seizures.

2. SEARCH AND SEIZURE—Warrantless Search Unreasonable—Excep- tion for Consent to Search. A warrantless search is presumptively unreasonable unless it falls within a recognized exception to the warrant requirement. Consent to search is one such exception.

3. SAME—Consent to Search—Determination from Totality of Circumstances. The existence and voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances.

4. SAME—Consent to Search—State's Burden to Establish Valid Consent— Requirements. The State bears the burden to establish the existence, scope, and voluntariness of the consent to search. To demonstrate valid consent, the State must (1) provide clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) demonstrate the absence of duress or coercion, express or implied.

5. SAME—Consent to Search—Mere Acquiescence Insufficient to Prove Vol- untary Consent. Mere acquiescence to a claim of lawful authority, alone, is insufficient to show voluntary consent.

6. SAME—Consent to Search—Factors for Determination of Voluntary Con- sent—Nonverbal Conduct a Relevant Factor. Consent may be found from an individual's words, acts, or conduct, and nonverbal conduct can be a relevant factor in determining the existence of voluntary consent under the totality of the circumstances.

7. SAME—Consent to Search—Determination of Valid Consent Through Nonver- bal Conduct—Considerations. An individual may communicate valid consent through nonverbal conduct, provided such conduct clearly expresses an individual's unequivocal, specific, free, and intelligent consent, in the absence of duress or coercion, under the totality of the circumstances, and does not constitute mere acquiescence to a claim of lawful authority.

Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 653, 458 P.3d 252 (2020). Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed November 13, 2020. Judgment of the Court of Appeals reversing the VOL. 312 SUPREME COURT OF KANSAS 391

State v. Daino district court is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded with directions.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Ste- phen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Senanem D. Gizaw, of Johnson County Public Defender's Office, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by

WALL, J.: This case requires us to decide whether an individual may consent to law enforcement's entry into an apartment through nonverbal conduct under section 15 of the Kansas Con- stitution Bill of Rights. The State charged Gianni Massimo Daino with several drug- related offenses after a warrantless search of his apartment led to the discovery of marijuana and other incriminating evidence. Daino moved to suppress all evidence seized as a result of the search. The State opposed the motion, arguing Daino's nonverbal conduct evidenced his voluntary consent. The district court granted Daino's motion, concluding as a matter of law that established Kansas precedent forecloses a finding of valid consent based on nonverbal conduct. In a split decision, the Court of Ap- peals reversed, holding that Daino's nonverbal conduct unequivocally expressed his voluntary consent. Daino petitioned for review, asking this court to decide whether Kansas law forecloses consent through nonverbal conduct. We conclude it does not, and nonverbal conduct can be probative of the existence of consent under the totality of the circumstances under section 15 of the Kansas Constitution Bill of Rights. We affirm the Court of Ap- peals' decision in part and reverse in part. Further, we reverse the order granting Daino's motion to suppress and remand the matter to the district court for further proceedings in light of the controlling legal standards set forth herein.

FACTS AND PROCEDURAL BACKGROUND

Dispatch sent Officers Robert McKeirnan and Kelly Smith to an apartment complex in response to a complaint about a narcotics odor. At the complex, the officers spoke with a person who said 392 SUPREME COURT OF KANSAS VOL. 312

State v. Daino he could smell marijuana coming from apartment number 48. As the officers walked toward that apartment, they could smell marijuana but could not tell where the smell originated. McKeirnan knocked on the apartment door when they arrived, but he did not announce he was a police officer. Both officers were in uniform, but they stood to the side of the door as a general safety precau- tion. After about a minute, Daino opened the door a few inches— enough to reveal part of his body but still blocking McKeirnan's line of sight into the apartment. McKeirnan noticed an overwhelming smell of both raw and burnt marijuana coming from the apartment. He told Daino he knew there was a lot of marijuana in the apartment because of the smell. McKeirnan then asked to come in the apartment. According to an audio recording McKeirnan made of the incident, McKeirnan told Daino: "Well, here's the deal, not a huge deal, but I gotta write a ticket if there's marijuana in the house, okay? 'Cause it's illegal, so let me step in with you real quick and we'll get it figured out, okay?" At the suppression hearing, McKeirnan testified that Daino responded by nodding his head and saying, "Okay. Let's do this." Daino then opened the door as far as it would go and stood out of the way. McKeirnan then clarified he did not recall Daino verbally responding to the request to enter the apartment, but he "assumed that [Daino] was agreeing with me that . . . it was okay for us to come in and take care of the marijuana." McKeirnan confirmed he "[a]bsolutely" believed Daino was allowing him in and "consenting to [his] presence." At counsel's request, McKeirnan also demonstrated the nonverbal conduct and gestures Daino made in response to McKeirnan's request to enter, using a swinging door near the witness stand for illustrative purposes. The district court later described Daino's nonverbal conduct, as demonstrated by McKeirnan:

"[W]hen the officer demonstrated what the defendant did in this case, any reasonable person that exists in the United States would have construed his gesture as 'come on in the apartment.' "He opened the door up, and he took his right hand and swung it across his body, and pointed into the apartment. No reasonable person could have construed that as don't come in, or I'm not sure if I want you to come in, or I'm still trying VOL. 312 SUPREME COURT OF KANSAS 393

State v. Daino to decide whether I want you to come in. Any reasonable person would have construed that as come on in the apartment."

Smith also testified Daino opened the door and stepped back in response to McKiernan's request to enter the apartment. She also believed Daino was consenting to the officers' entry. Once inside, McKeirnan asked Daino where the marijuana was located. Daino answered it was in his bedroom and pointed towards his room. McKeirnan said, "I'll go back there and grab that, okay?" and Daino nodded. McKeirnan said he would write Daino a ticket and give him a court date provided there was only a small amount of marijuana and some paraphernalia. Daino responded, "[I]t's a lot of weed." In Daino's bedroom, McKeirnan saw a safe, medication bottles, some pipes, and LSD blotter paper. He asked Daino to point out the location of the marijuana and Daino complied. McKeirnan did not seize any items at that time. Instead, he asked Daino to sign a consent to search form. The form advised Daino that he had the right to refuse consent to the search. Daino signed the form, purportedly consenting to a search of the apartment except for his absent roommate's bedroom. According to the affidavit, the resulting search uncovered 27 grams of marijuana; 15 Ampheta- mine/Dextroamphetamine pills; a black notebook which appeared to be a ledger for drug sales; plastic bags of various sizes; a digital scale; $363 in cash; as well as other illegal narcotics and items of paraphernalia. Given the amount of marijuana the officers recovered, McKeirnan knew he could not simply write Daino a ticket. McKeirnan arrested Daino and read him his Miranda rights. Daino then admitted to selling marijuana. According to McKeirnan, Daino was cooperative and compli- ant throughout the encounter, and he never limited or withdrew his alleged consent. McKeirnan also testified Daino was 18 years of age at the time of the search and was emotionally upset during the interaction. Daino cried at one point, but he was never so upset that he could not communicate with the officers. The State charged Daino with possession of marijuana with intent to distribute under K.S.A. 65-4105(d)(17), possession of amphetamine under K.S.A. 65-4107(d)(1), and possession of drug 394 SUPREME COURT OF KANSAS VOL. 312

State v. Daino paraphernalia under K.S.A. 2019 Supp. 21-5709(b)(1). Daino moved to suppress the evidence, arguing the officers obtained all evidence through an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and section 15 of the Kansas Constitution Bill of Rights. He challenged the officers' "knock-and-talk," the officers' entry into his apartment, the search of his bedroom, and the admissibility of his statements to police. As for the officers' entry into the apartment, Daino argued he did not validly consent because he never verbally agreed to let the officers enter. For support, he cited State v. Poulton, 37 Kan. App. 2d 299, 307, 152 P.3d 678 (2007), aff'd in part, rev'd in part 286 Kan. 1, 179 P.3d 1145 (2008). Daino claimed that, like the defendant in Poulton, his nonverbal conduct showed mere acquiescence to the officers' claim of authority, not valid consent. The State advanced the opposite position. The district court granted Daino's motion to suppress, ruling only on Daino's challenge to the officers' entry into the apartment. The court found McKeirnan was credible. It also found Daino's gesture clearly communicated an invitation to enter the apartment. But it construed Poulton as prohibiting implied or nonverbal consent "under any circumstances, regardless of how clear . . . the gestures might be." The district judge expressed his disagreement with what he perceived to be Poulton's holding but acknowledged he was bound by that decision:

"[W]ere it up to me, I would find that consent was freely and specifically and intelligently given. "But again, [Poulton], I think, is clear that . . . consent may never be implied. And one of the things that I think finally allowed me to land on a decision, one I don't agree with but one I think I have to make, is the fact that the Court of Ap- peals cited with approval the Black[']s Law Dictionary [definition] of implied consent as, [m]anifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given. "Maybe I am just simpleminded but, again, even though I don't agree with it, I read the Kansas case law as saying that no action or gesture can be construed as implied consent. . . . . "Again, if I haven't said it already enough times, I don't agree. I believe if it were up to me that [Daino] did consent knowingly, voluntarily. But I believe that VOL. 312 SUPREME COURT OF KANSAS 395

State v. Daino under the current status of Kansas law, it was not consent and, as a result, I must grant the motion to suppress."

After the district court explained its ruling, the State asked the court to clarify whether the ruling was based exclusively on section 15 of the Kansas Constitution Bill of Rights. The court responded, "I believe that that is my finding." The State filed an interlocutory appeal, arguing Daino either expressly or impliedly consented to the officers' entry through his nonverbal conduct, and the consent was valid under both the Fourth Amendment and section 15. In a split decision, the Court of Appeals reversed the district court. State v. Daino, 57 Kan. App. 2d 653, 670, 458 P.3d 252 (2020). The majority observed that Kansas courts have traditionally interpreted section 15 as providing the same protections as the Fourth Amendment. 57 Kan. App. 2d at 660-61. It noted federal courts interpreting the Fourth Amendment have found that "'[c]onsent can be found from an individual's words, acts or conduct.'" 57 Kan. App. 2d at 669-70 (quoting Krause v. Penny, 837 F.2d 595, 597 [2d Cir. 1988]). While some Kansas Court of Appeals decisions had found that an individual's conduct was insufficient to support a finding of lawful consent, the majority noted the defendants in those cases had merely failed to object to the officers' uninvited entry. In contrast, the majority found Daino had affirmatively communicated to the officers that they could enter his apartment. 57 Kan. App. 2d at 668-69. It concluded that a reasonable person would have understood Daino's conduct as consenting to the officers entering his apartment, and thus the State had met its burden to show Daino unequivocally, specifically, freely, and intelligently gave his consent. 57 Kan. App. 2d at 669. Judge Buser dissented, finding Daino had merely acquiesced to the officer's claim of authority because: (1) McKeirnan did not explicitly or implicitly inform Daino that he was requesting permission to enter to search the premises; (2) McKeirnan did not inform Daino of his right to refuse the officer's request to enter the apartment; and (3) McKeirnan's statements were misleading and a reasonable person would not have understood he was seeking entry to search the apartment. 57 Kan. App. 2d at 671-72 (Buser, J., dissenting). Given these circumstances, Judge Buser concluded 396 SUPREME COURT OF KANSAS VOL. 312

State v. Daino that a reasonable person would not have understood Daino's silent gesture as fully informed and freely given consent to enter the apartment to search for and seize marijuana. 57 Kan. App. 2d at 673-74 (Buser, J., dissenting). Daino petitioned for review, arguing there is an apparent conflict in Kansas caselaw as to whether nonverbal conduct can establish valid consent. We granted review to consider this issue.

ANALYSIS

Legal Framework and Standard of Review

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." This provision, made applicable to the states through the Fourteenth Amendment, prohibits government actors from performing unreasonable searches or seizures. State v. Chavez-Majors, 310 Kan. 1048, 1053, 454 P.3d 600 (2019). Like- wise, section 15 of the Kansas Constitution Bill of Rights prohibits unreasonable searches and seizures. This court has traditionally interpreted section 15 as providing protections identical to the Fourth Amendment. State v. Zwickl, 306 Kan. 286, 291, 393 P.3d 621 (2017). Here, neither the district court nor the parties suggest section 15 offers protections greater than the Fourth Amendment. A warrantless search is always unreasonable unless an exception to the warrant requirement applies. Chavez-Majors, 310 Kan. at 1053. Absent consent or exigent circumstances, the warrantless search of a home is presumptively unconstitutional. See Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004); Steagald v. United States, 451 U.S. 204, 211, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). For purposes of the Fourth Amend- ment, entry into the home is considered a search. See United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (finding officer's entry into home constituted search for purposes of Fourth Amend- ment); see also Payton v. New York, 445 U.S. 573, 585-86, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ("'[P]hysical entry of the home VOL. 312 SUPREME COURT OF KANSAS 397

State v. Daino is the chief evil against which the wording of the Fourth Amend- ment is directed.'"). Here, the State argued the officers' warrantless entry into Daino's apartment was lawful because Daino consented to the entry. The existence, voluntariness, and scope of a consent to search is a question of fact to be determined from the totality of the circumstances. State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-27, 248- 49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Moore, 283 Kan. 344, 361, 154 P.3d 1 (2007). The State has the burden of establishing, by a preponderance of the evidence, that a defendant's consent to search is valid. State v. Boggess, 308 Kan. 821, 827, 425 P.3d 324 (2018); Jones, 279 Kan. at 77. A showing of mere acquiescence to a claim of lawful authority will not satisfy this burden. 279 Kan. at 78. Instead, to demonstrate valid consent, the State must (1) provide clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) demonstrate the absence of duress or coercion, express or implied. State v. Cleverly, 305 Kan. 598, 613, 385 P.3d 512 (2016); see United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997). While consent must be unequivocal, specific, and freely and intelligently given, neither Kansas law nor constitutional doctrine require it be verbal, i.e., written or spoken. United States v. Guer- rero, 472 F.3d 784, 789 (10th Cir. 2007). Instead, an individual may express his or her consent through gestures or other indica- tions of affirmation, so long as they sufficiently communicate an individual's unequivocal, specific, and freely given consent. 472 F.3d at 789-90. Courts employ an objective reasonableness standard to determine the existence and scope of an individual's consent. State v. Johnson, 253 Kan. 356, 365, 856 P.2d 134 (1993) (quoting Flor- ida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 [1991]); see United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995). Therefore, the key inquiry is whether, based on the totality of the circumstances, the conduct and interaction would have caused a reasonable officer to believe the defendant consented to entry or search. United States v. Muse, 428 F. Supp. 3d 398 SUPREME COURT OF KANSAS VOL. 312

State v. Daino

1186, 1193 (D.N.M. 2019) (quoting Flores, 48 F.3d at 468-69), reconsideration denied No. 17-CR-2008 MV, 2020 WL 709270 (D.N.M. 2020); United States v. Castellanos, 518 F.3d 965, 969 (8th Cir. 2008). When reviewing a district court's ruling on a motion to suppress, appellate courts review the factual findings for substantial competent evidence and the ultimate legal conclusion de novo. State v. Guein, 309 Kan. 1245, 1251-52, 444 P.3d 340 (2019). Here, the district court ruled, as a matter of law, that Daino could not consent through nonverbal conduct. As such, we review this legal conclusion de novo.

Kansas law does not preclude consent through nonverbal conduct.

In his petition for review, Daino argues Kansas appellate courts disagree whether an individual may consent to search through nonverbal conduct. However, a careful review of this authority reveals no such conflict. To the contrary, these decisions confirm that an individual may communicate valid consent through nonverbal conduct, provided such conduct, under the totality of the circumstances, clearly expresses an individual's unequivocal, specific, free, and intelligent consent, in the absence of duress or coercion, and does not constitute mere acquiescence to a claim of lawful authority. For example, in Cleverly, we indicated a defendant may consent to a search through nonverbal conduct facilitating the search. There, Cleverly handed his cigarette packages to an officer after the officer asked to search them during a traffic stop. One package had methamphetamine inside. The district court denied Cleverly's motion to suppress, finding he had validly consented to the search. On review, we held Cleverly was illegally detained by the officer before the search. We also observed that Cleverly clearly expressed his consent through the nonverbal act of handing his cigarette packs to the officer upon request. Cleverly, 305 Kan. at 613. However, based on the continuation of the unlawful detention and the post-traffic stop conduct of the officers, we held "under the totality of the circumstances of this case, the nature of Cleverly's unlawful seizure rendered his consent to the search of the cigarette package involuntary and, consequently, invalid." 305 Kan. at 614. Several Court of Appeals decisions have also viewed defendant's nonverbal conduct as probative of voluntary consent. In State VOL. 312 SUPREME COURT OF KANSAS 399

State v. Daino v. Seeley, No. 99,456, 2009 WL 500960 (Kan. App. 2009) (unpublished opinion), an officer asked Seeley if he could search her apartment for illegal narcotics and Seeley nodded her head. Seeley argued her head nod did not establish substantial evidence that her consent was unequivocal, specific, and intelligently given. The Court of Appeals noted "[a]rguably, a nod of the head can be unequivocal and specific," citing United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999), and United States v. Torres, 983 F. Supp. 1346, 1354-55 (D. Kan. 1997). Seeley, 2009 WL 500960, at *4. The panel also noted Seeley had told officers they could "'look around,'" and it held the totality of the circumstances provided substantial evidence supporting the district court's conclusion that her consent was valid. 2009 WL 500960, at *4. In State v. Tabarez, No. 104,352, 2011 WL 5389690 (Kan. App. 2011) (unpublished opinion), Tabarez nodded when an officer asked for permission to search Tabarez' pants during a traffic stop. In analyzing whether Tabarez consented to the search, the panel acknowledged "[c]ertainly, caselaw supports a finding that a nod of the head can be unequivocal and specific," again citing Gordon and Torres. Tabarez, 2011 WL 5389690, at *5. The panel concluded that Tabarez' nonverbal response to the request to search, coupled with other circumstances supporting the voluntariness of the encounter, provided adequate support for the district court's conclusion that consent was valid. 2011 WL 5389690, at *5-6. Most recently, in City of Topeka v. Murdock, No. 116,213, 2018 WL 385699 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1593 (2018), an officer said he needed to discuss personal business with Murdock and would rather not do it in the hallway. Murdock told the officer to "come in," stepped back into his apartment and gave a slight wave. Citing Seeley and Gordon, the Court of Appeals acknowledged that "[n]onverbal conduct can also constitute consent to enter an individual's home." 2018 WL 385699, at *3. The panel reasoned that, "[i]f a nod of the head can be unequivocal and specific, so can a wave paired with opening the door wider and stepping backwards." 2018 WL 385699, at *3. The panel concluded Murdock's conduct and language unequivocally expressed his valid consent to entry. 2018 WL 385699, at *3. Federal jurisprudence likewise confirms that an individual can unequivocally express his or her lawful consent under the Fourth 400 SUPREME COURT OF KANSAS VOL. 312

State v. Daino

Amendment through nonverbal conduct. See Guerrero, 472 F.3d at 789-90; see also United States v. Basher, 629 F.3d 1161, 1167 (9th Cir. 2011) ("Consent can be inferred from nonverbal actions, but it must be 'unequivocal and specific' and 'freely and intelligently given.'"); United States v. Lewis, 476 F.3d 369, 381 (5th Cir. 2007) ("The officers reasonably interpreted Caldwell's gesture as an invitation to enter the room."); United States. v. Win- ston, 444 F.3d 115, 122 (1st Cir. 2006) ("We do not find it of de- cisive significance that in response to the agent's question as to the location of the nightstand, Winston motioned with his shoulder rather than speaking. In other situations, we have found implied- in-fact consent based entirely on silent actions."); United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) ("Consent to a search 'may be in the form of words, gesture, or conduct.'"); United States v. Walls, 225 F.3d 858, 863 (7th Cir. 2000) ("It is well established that consent may be manifested in a non-verbal as well as a verbal manner."); United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981) ("[I]t is well settled that consent may be inferred from an individual's words, gestures, or conduct."). We find these cases persuasive, as we have interpreted section 15 as providing the same protections as the Fourth Amendment. We do not depart from that precedent today. Granted, not every Kansas appellate court has concluded that defendant's nonverbal conduct was sufficient to establish lawful consent under the totality of the circumstances. Most notably, in Poulton, on which the district court relied in granting Daino's motion, the Court of Appeals held that an individual's mere acquiescence did not provide substantial evidence of lawful consent. There, officers went to Poulton's home looking for a woman who had violated parole. Poulton met with the officers on his porch. When the officers said they wanted to go inside to get the woman, Poulton offered to do it himself. The officers then followed Poul- ton into his home—neither asking permission nor waiting for the same from defendant. Poulton later moved to suppress the evidence officers found once inside his home, but the district court ruled Poulton had impliedly consented to the search. The Court of Appeals reversed, finding Poulton's mere acquiescence to law en- VOL. 312 SUPREME COURT OF KANSAS 401

State v. Daino forcement's uninvited entry did not satisfy the standard for voluntary consent under the totality of the circumstances. Poulton, 37 Kan. App. 2d at 307-08. Several Court of Appeals panels have relied on Poulton to conclude a defendant's nonverbal conduct constituted mere acquiescence, not voluntary consent, where the State attempted to infer consent from an individual's inaction or failure to protest law enforcement's uninvited entry or search. See State v. Metcalf, No. 117,802, 2018 WL 5851524, at *9 (Kan. App. 2018) (unpublished opinion) (conduct of motel room occupant, who did not invite in or deny entry to officers and complied with officer's request to locate defendant inside the room, did not establish that she gave "unequivocal, specific" consent); State v. Cox, No. 112,387, 2015 WL 1785576, at *4 (Kan. App. 2015) (unpublished opinion) (defendant did not implicitly consent to the search of a bag left in another person's vehicle where defendant confirmed her bag was a "Buckle" bag with a wood sander inside, driver confirmed which of several "Buckle" bags belonged to defendant, but officer looked inside to see if it contained a wood sander and found a methamphetamine pipe); State v. Tang, No. 109,875, 2013 WL 6168664, at *5 (Kan. App. 2013) (unpublished opinion) (finding defendant's act of opening the door, walking into home, and failing to otherwise prevent officer from following him in did "not show that Tang unequivocally, specifically, freely, and intelligently consented to [law enforcement's] entry into his home"). None of these decisions embrace a rule of law foreclosing nonverbal conduct as a basis for valid consent. Instead, their out- comes are fact driven and dependent on the characteristics of the accused, the nature of the nonverbal conduct, and other circumstances regarding the interaction and conditions in which consent was purportedly granted. Poulton, et al., refused to infer consent based merely on an individual's silence, inaction, or failure to protest, often in situations where officers did not even ask to enter a residence or search belongings. In other words, under the facts unique to those decisions, an individual's silence or inaction in response to law enforcement's uninvited entry failed to provide substantial evidence of unequivocal, specific, and freely given consent. Rather than prohibiting consent based on nonverbal conduct, 402 SUPREME COURT OF KANSAS VOL. 312

State v. Daino these cases illustrate the well-established legal pronouncement that consent must be founded on something more than mere acquiescence to a claim of lawful authority. Jones, 279 Kan. at 78 (defendant's mere acquiescence to preliminary breath test did not establish voluntary consent); Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (The burden of proving that the consent was, in fact, freely and voluntarily given "cannot be discharged by showing no more than acquiescence to a claim of lawful authority."). Federal authority interpreting the Fourth Amendment rein- forces this proposition. Like Poulton, federal courts have refused to find valid consent where the nonverbal conduct was ambiguous or the individual simply failed to object to the officer's entry into the home. See, e.g., Bashir v. Rockdale County, Ga., 445 F.3d 1323, 1329 (11th Cir. 2006) ("[C]onsent cannot reasonably be inferred from Bashir's simple act of disengaging from conversation with Sergeant Reed and walking into the house. Nor can consent reasonably be inferred from Bashir's conduct once [Deputy] Davis was already inside."); United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990) (holding that "merely retreating into one's home while being followed by a police officer," standing alone, does not show consent to police entry and consent not implied because defendant failed to object to officers entering apartment's open door); United States v. Little, 431 Fed. Appx. 417, 420-21 (6th Cir. 2011) (unpublished opinion) (holding no implied consent where officer failed to ask permission to enter and "'merely followed Defendant into the house when Defendant went in to get additional clothing'"). On the other hand, federal courts have found an individual's nonverbal conduct constituted valid consent where, under the totality of the circumstances, a reasonable officer could interpret such conduct (such as opening a door, stepping back, nodding in the affirmative, and/or a waving-in gesture) as an unequivocal response to law enforcement's request to search. See, e.g., United States v. Sabo, 724 F.3d 891, 894 (7th Cir. 2013) ("'[T]his court, on more than one occasion, has found that the act of opening a door and stepping back to allow entry is sufficient to demonstrate consent.'"); Lewis, 476 F.3d at 381 (holding that officers reasonably VOL. 312 SUPREME COURT OF KANSAS 403

State v. Daino interpreted occupant's gesture as invitation to enter after they knocked on hotel room door); Carter, 378 F.3d at 587 (finding defendant's actions constituted consent because he stepped back and allowed officers in after they asked permission to enter); United States v. Ramirez- Chilel, 289 F.3d 744, 751-52 (11th Cir. 2002) (finding defendant demonstrated consent by yielding right of way so officers could enter residence after officers asked to enter); United States. v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) ("An invitation or consent to enter a house may be implied as well as expressed. There was no error in the determination of the district court that the action of Church in the opening of the door and stepping back constituted an implied invitation to enter."). Together, these decisions stand for the well-established proposition that lawful consent requires clear and positive evidence that an individual's consent is unequivocal, specific, freely given, and free from duress or coercion, under the totality of the circumstances. State v. Ran- som, 289 Kan. 373, Syl. ¶ 4, 212 P.3d 203 (2009). This holds true whether the consent is founded on verbal or nonverbal conduct, or both. Further, these decisions instruct that when examining whether a reasonable officer would interpret nonverbal conduct as valid consent under the totality of the circumstances, the court should consider all relevant circumstances that give meaning and context to the encounter, including any substantive nexus between the statements or conduct of law enforcement and the defendant's nonverbal response. In exploring such a nexus, courts have generally found nonverbal conduct to be more characteristic of mere acquiescence where "law enforcement officers either did not ask for permission to enter or search, and thus did not make known their objective, or, if they did, their request was met with no response or one that was nonspecific and ambiguous." Turner v. State, 133 Md. App. 192, 207-08, 754 A.2d 1074 (2000). In contrast, courts have been more inclined to find valid consent from nonverbal conduct where a substantive nexus is apparent and

"the police made it known, either expressly or impliedly, that they wished to enter the defendant's house, or to conduct a search, and within that context, the conduct from which consent was inferred gained meaning as an unambiguous gesture of invitation or cooperation or as an affirmative act to make the premises accessible for entry." 133 Md. App. at 207.

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In short, the presence or absence of a substantive nexus between the officer's request and the nonverbal response is often highly probative when "examining the totality of the circumstances to determine whether a reasonable officer would interpret a gesture or conduct as consent." United States v. Bynum, 125 F. Supp. 2d 772, 783-84 (E.D. Va. 2000) ("Those decisions teach that . . . it is necessary to consider the question posed by, and the actions of, the law enforcement officers to which the defendant's non-verbal conduct was a response."), rev'd in part on other grounds 293 F.3d 192 (4th Cir. 2002). Therefore, we agree with the Court of Appeals that "nothing in our precedent requires consent to be verbal—it merely requires that consent be clear and unequivocal." Daino, 57 Kan. App. 2d at 669. As such, the district court committed legal error by granting Daino's motion to suppress based on the erroneous conclusion that Kansas law precludes an individual from communicating valid consent through nonverbal conduct. We sympathize with the district court because Poulton's use and definition of the phrase "implied consent" seems to have created unnecessary confusion regarding the appropriate legal standard. Poulton used the phrase "implied consent" to describe defendant's silence or inaction in response to law enforcement's uninvited entry into the residence. However, Poulton also relied on Black's Law Dictionary to define "implied consent" broadly to include "'[t]hat manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given.'" Poulton, 37 Kan. App. 2d at 307. Then, it pronounced that "[c]onsent by implication . . . is contrary to established law," and concluded "[t]he fact that Poulton acquiesced or impliedly consented in the officers' entry does not meet the standard for voluntary consent." 37 Kan. App. 2d at 307. Here, the district court found that nonverbal conduct fell within Poulton's broad definition of "implied consent" and then applied Poulton's pronouncement that "implied consent" is contrary to established law to grant Daino's motion to suppress. We understand the district court's rationale. However, properly construed, Poulton's use of the term "implied consent" must be limited to the "inaction or silence" exhibited under the facts of that case. Any VOL. 312 SUPREME COURT OF KANSAS 405

State v. Daino construction of Poulton as a rejection of "implied consent" altogether, and consent implied through unequivocal nonverbal conduct specifically, is legally erroneous. The validity of consent does not depend on labels and definitions characterizing the conduct in question as "implied" and "express" or "verbal" and "nonverbal." Instead, the focus remains on the message the individual unequivocally conveys through his or her conduct, if any, under the totality of the circumstances. In conclusion, the State bears the burden to prove the legality of the warrantless search of Daino's apartment. See Cleverly, 305 Kan. at 605 (State bears burden of proving legality of challenged search or seizure). If the State wishes to rely on the consent exception, it must prove Daino unequivocally, specifically, freely, and intelligently consented to any search, free from duress or coercion, under the totality of the circumstances. This standard remains unchanged. We only clarify that an individual may express valid consent through words, acts, or conduct, and an individual's nonverbal conduct can be relevant in determining whether this standard has been met.

The matter must be remanded for a new hearing under the appropriate legal standards.

While we agree with the legal conclusion reached by the majority of the Court of Appeals panel (that an individual may validly consent to law enforcement's entry and search through nonverbal conduct), the majority did not end its analysis here. Instead, it went on to find and conclude that "[t]he totality of circumstances shows that Daino unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate the smell of marijuana." 57 Kan. App. 2d at 669. This conclusion exceeded the scope of the panel's review. Whether Daino voluntarily consented, free from duress or coercion, is a question of fact to be determined by the district court under the totality of the circumstances. State v. Thompson, 284 Kan. 763, 783, 166 P.3d 1015 (2007). Here, the district court concluded, as a matter of law, that Daino could not consent through nonverbal conduct. As such, the district court did not make (nor did it need to make) the findings necessary to support the conclusion that consent was otherwise unequivocal, specific, free, and 406 SUPREME COURT OF KANSAS VOL. 312

State v. Daino intelligent, and free from duress or coercion, express or implied, under the totality of the circumstances. To the extent the record could be read to imply such findings, they were conjectural at best because the district court knew its ruling was founded entirely on a question of law. Indeed, as the parties agreed at oral argument, our review on appeal is limited to deciding whether the district court's legal conclusion is correct. The majority engaged in improper fact-finding to reach the ultimate question, which exceeded the scope of review on appeal. See State v. Reed, 300 Kan. 494, 513, 332 P.3d 172 (2014) (appellate courts do not make fact-findings but review those made by the district court). Further, at this stage of the proceedings, there is great difficulty and potential danger in determining, in isolation, the legality of the officers' initial entry into the apartment. In his motion, Daino challenged not only the officers' entry, but also the officers' "knock-and-talk," the subsequent search of the bedroom, and the admissibility of any statements made to police during these en- counters. Because the district court found the officers' initial entry into the apartment to be invalid as a matter of law, it did not reach these additional issues or make factual findings pertaining to them. As highlighted by Judge Buser's dissenting opinion, the facts giving rise to these additional issues are closely intertwined with those relevant to deciding whether Daino unequivocally, specifically, and freely consented to the officers' entry, free from duress or coercion. As such, the district court should consider these issues and any fact-finding relevant to them together as part of the totality of the circumstances. The district court's legal error necessitates remand for additional proceedings and fact-finding under the proper legal framework. See State v. Garcia, 295 Kan. 53, 64, 283 P.3d 165 (2012) (where district court ruled on motion to withdraw plea based upon an erroneous understanding of the law, we must reverse the district judge's ruling and remand for another hearing applying the appropriate legal standards). Accordingly, we remand this case to the district court for further proceedings on Daino's motion to suppress consistent with our clarification of the relevant legal standards.

VOL. 312 SUPREME COURT OF KANSAS 407

State v. Daino

Affirmed in part, reversed in part, and remanded to the district court with directions.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge, assigned.1

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,824 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the retirement of Justice Carol A. Beier.

408 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary

No. 114,413

CITY OF KINGMAN, Appellee, v. RONALD S. ARY, Appellant.

___

SYLLABUS BY THE COURT

SEARCH AND SEIZURE—Warrantless Blood Test—Conviction Upheld by Application of Good-Faith Exception to Exclusionary Rule. Applying State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), to the circumstances of this case, the good-faith exception to the exclusionary rule applies and allowed the district court to consider the results of a blood test for blood alcohol content even though the Kansas Supreme Court would later hold that K.S.A. 2013 Supp. 8-1025 was unconstitutional.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 15, 2017. Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed November 20, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, was on the briefs for appellant.

Cody R. Smith, city attorney, and Todd D. Hauser, assistant city attorney, were on the briefs for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: In this appeal, a Court of Appeals panel held that the warrantless blood test of Ronald S. Ary obtained under the implied consent statute was unconstitutional based either on consent or as a search incident to arrest per Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); State v. Ryce, 306 Kan. 682, 699-700, 396 P.3d 711 (2017) (Ryce II); and State v. Nece, 306 Kan. 679, 681, 396 P.3d 709 (2017) (Nece II). The panel still affirmed Ary's driving under the influence (DUI) conviction, holding that the good-faith exception to the exclusionary rule allowed the district court to consider the results of Ary's blood test. City of Kingman v. Ary, No. 114,413, 2017 WL 6395794 (Kan. App. 2017) (unpublished opinion). Ary asks us to reverse the panel's holding that the good-faith exception applies. Ary recognizes this court's holding in State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), in which we held the VOL. 312 SUPREME COURT OF KANSAS 409

City of Kingman v. Ary good-faith exception applies to breath tests for blood alcohol content collected under the unconstitutional implied consent statute. But Ary asks us to revisit Perkins. In doing so, he does not base any of his arguments on the differences between blood and breath tests, and he does not persuade us to abandon our recent decision in Perkins. We thus affirm the Court of Appeals and the district court's decisions to allow consideration of the blood test results, which presumptively showed Ary was guilty of DUI.

FACTUAL AND PROCEDURAL BACKGROUND

A law enforcement officer responded to a crash in May 2014 involving a vehicle driven by Ary. The officer investigating the crash noticed that Ary showed signs of impairment and arrested Ary in Kingman for DUI. The officer gave Ary the statutorily required implied consent advisories, both orally and through the written DC-70 form. Ary agreed to submit to a blood test. Emergency personnel took a blood sample at the police station. Police did not try to get a search warrant. The blood test results revealed a blood alcohol content of .14 grams per 100 milliliters of blood. Ary was found guilty in the Kingman Municipal Court and appealed for review by the Kingman County District Court. Ary moved to suppress the results of the search warrant as unconstitutional. Ary waived his right to jury trial, and the case proceeded to a bench trial on stipulated facts. Ary and the City of Kingman agreed to the stipulation with the understanding that Ary would preserve his right to appeal the denial of his motion to suppress. The City of Kingman raised the good-faith exception as one of the defenses in its response to Ary's motion to suppress at the district court. The district court denied the motion to suppress and found Ary guilty of DUI. Ary appealed, and the Court of Appeals affirmed. Ary, 2017 WL 6395794. The panel held that the warrantless blood test was unconstitutional based either on consent or as a search incident to arrest, citing Birchfield, 136 S. Ct. 2160; Ryce II, 306 Kan. at 699- 700; and Nece II, 306 Kan. at 681. But the panel held the district court could consider evidence because the good-faith exception to the exclusionary rule applied. The panel held there was no reason 410 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary for the arresting officer to know the implied consent statute would be found unconstitutional two years after the arrest, and there was no sign that the Legislature had abandoned its duty to pass constitutional laws. 2017 WL 6395794, at *4. The good-faith exception thus preserved the evidence. See Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); State v. Daniel, 291 Kan. 490, 500, 242 P.3d 1168 (2010). After granting review over the Court of Appeals' decision, this court held in Perkins that the good-faith exception to the exclusionary rule allowed courts to consider evidence from breath tests obtained in reliance on the unconstitutional implied consent statute. 310 Kan. at 770-71. After that decision, we asked Ary and the City of Kingman to show cause why Perkins does not control the outcome of this appeal. In response, Ary asked us to revisit Per- kins.

ANALYSIS

To provide context to Ary's request and our review, we begin by summarizing legal developments about the constitutional issues raised by implied consent laws and blood alcohol (BAC) testing of impaired drivers up through this court's decision in Perkins. Two lines of cases are relevant: (1) those defining BAC testing as a search and (2) cases discussing the good-faith exception.

1. Search

Several cases establish that a test for blood alcohol content is a search. E.g., Birchfield, 136 S. Ct. at 2173; Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). This point is critical to Ary's argument because the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches. And a warrantless search is per se unreasonable unless a valid exception to the Fourth Amendment applies. Ari- zona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Recognized exceptions in Kansas include consent, search VOL. 312 SUPREME COURT OF KANSAS 411

City of Kingman v. Ary incident to lawful arrest, and exigent circumstances, among others. Neighbors, 299 Kan. at 239. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), was the United States Supreme Court's "first foray into considering intrusions into the human body." State v. Ryce, 303 Kan. 899, 920, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). In that case, officers obtained a blood test from a driver over his objection; the Court held that—under the particularized facts of that case—the warrantless search fell into the exigent circumstances exception to the Fourth Amendment warrant requirement. 384 U.S. at 770-72; see also Birchfield, 136 S. Ct. at 2174 (Schmerber's exigent circumstances exception by its nature requires case-by-case analysis and is not categorical); Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (same). After Schmerber, legislatures enacted implied consent laws, eventually in all 50 states, because states recognized that "the cooperation of the test subject is necessary when a breath test is ad- ministered and highly preferable when a blood sample is taken." Birchfield, 136 S. Ct. at 2168. Typically, these laws sought to secure this consent through revoking or suspending a driver's license as a penalty for withdrawal of the consent because every motorist impliedly consents to the testing as a condition of the privilege of driving on public roads. 136 S. Ct. at 2169; State v. Adee, 241 Kan. 825, 831, 740 P.2d 611 (1987). This was fine, constitutionally, until the Kansas Legislature enacted criminal sanctions for the withdrawal of consent. As the term "implied consent" suggests, these laws hinge on the consent exception to the Fourth Amendment warrant requirement. For consent to be valid, a person must be able to withdraw consent. Ryce I, 303 Kan. at 932. In Ryce I, the court held that the statutory language in K.S.A. 2014 Supp. 8-1025 which criminalized the driver's withdrawal of consent to BAC testing was unconstitutional. 303 Kan. at 963. In State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I), aff'd on reh'g, 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), the court held that the unconstitutional threat of criminal sanctions in K.S.A. 2014 Supp. 8-1025 unduly coerced a 412 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary driver's consent to BAC testing, making it involuntary. 303 Kan. at 889. Then, in Birchfield, the United States Supreme Court held that warrantless breath tests are constitutionally permissible under the search incident to arrest exception to the Fourth Amendment warrant requirement, and therefore such searches are a categorical exception to the warrant requirement. 136 S. Ct. at 2185. The Court did not include blood tests in this holding because blood tests are far more intrusive. 136 S. Ct. at 2185. We reaffirmed Ryce I and Nece I after rehearings to consider the effect of Birchfield. Ryce II, 306 Kan. at 700; Nece II, 306 Kan. at 681. Ryce II pointed out that Birchfield concerned the search incident to arrest exception, while Ryce I and Nece I concerned the consent exception. The statute's criminalization of withdrawal of consent was thus still unconstitutional, although in Ryce II we recognized that warrantless breath tests could be constitutionally permissible as searches incident to arrest. 306 Kan. at 699-700. This led to several appeals of DUI convictions in which officers procured the BAC test under the unconstitutional threat of criminal sanctions in K.S.A. 2013 Supp. 8-1025, repealed by L. 2019, ch. 13, § 5. The State began to argue that the good-faith exception to the exclusionary rule should apply because the officers had no reason to know that this court would declare K.S.A. 2013 Supp. 8-1025 unconstitutional, often years after the arrest.

2. Good-Faith Exception

Neither the Fourth Amendment nor § 15 of the Kansas Con- stitution Bill of Rights address the proper remedy for a warrantless search. The exclusionary rule is a judicially created remedy that deters unconstitutional searches because it prevents the use of unconstitutionally obtained evidence at trial. Krull, 480 U.S. at 347; Daniel, 291 Kan. at 496. But the exclusionary rule does not always apply, including when the good-faith exception allows the court to consider the evidence. Krull, 480 U.S. at 349-50; Daniel, 291 Kan. at 499-500. In Leon, the Supreme Court held an officer's reasonable, good-faith reliance on a search warrant insulated the evidence from the exclusionary rule even though a court later found the VOL. 312 SUPREME COURT OF KANSAS 413

City of Kingman v. Ary warrant invalid. 468 U.S. at 922-23. The Supreme Court made clear that a court should apply the exclusionary rule only when doing so deters law enforcement officers from acting in an unconstitutional manner. 468 U.S. at 906. The Court thus reserved the exclusionary remedy for circumstances in which a court "has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process." Krull, 480 U.S. at 347. Because this weighing is fact-specific, "suppression of evidence . . . should be ordered only on a case- by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Leon, 468 U.S. at 918. In Krull, the United States Supreme Court expanded the Leon good-faith exception to include an officer's reasonable reliance on an unconstitutional statute. 480 U.S. at 349-50. The United States Supreme Court held, under the circumstances of that case, excluding evidence obtained when police are enforcing a statute later found to be unconstitutional would not serve the rule's purpose because it would have no deterrent effect on law enforcement. 480 U.S. at 349. The Krull Court explained:

"Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is sub- sequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written. To paraphrase the Court's comment in Leon: 'Penalizing the officer for the [legislature's] error, rather than his own, cannot logically contrib- ute to the deterrence of Fourth Amendment violations.' [Citation omitted.]" 480 U.S. at 349-50.

The Krull Court recognized a new body of actors other than law enforcement that played a role in statutes: legislators. A new issue thus arose as to whether applying the exclusionary rule would deter legislators from enacting unconstitutional statutes. In analyzing that question, the Court first reasoned that legislators take an oath to uphold the Constitution and courts presume legislators act constitutionally. 480 U.S. at 351. The Court was thus "not willing to assume now that there exists a significant problem 414 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary of legislators who perform their legislative duties with indiffer- ence to the constitutionality of the statutes they enact." 480 U.S. at 352 n.8. Even so, the Krull Court acknowledged a point made by the dissenters and recognized situations might arise in which a legislature enacted an obviously unconstitutional statute because the legislature yielded "to the temptation offered by the Court's good- faith exception." 480 U.S. at 366 (O'Connor, J., joined by Bren- nan, Marshall, and Stevens, JJ., dissenting). But the Court concluded the objectively reasonable reliance requirement of Leon allowed courts to consider the circumstances and, where appropriate, apply the exclusionary rule:

"A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. [Citation omitted.] As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers. [Cita- tion omitted.]" 480 U.S. at 355.

Examining the circumstances in Krull, the Court held the officer's reliance on the statute was objectively reasonable. 480 U.S. at 360. Several factors led to that conclusion: Caselaw had supported similar statutes, the statute appeared to be aimed at a legitimate state purpose, and the constitutional infirmity with the statute was not "sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable." 480 U.S. at 358-59. This court adopted the Krull expansion of the good-faith exception to excuse an officer's reasonable reliance on a statute in Daniel, 291 Kan. at 499-500. There, police conducted a post-arrest search of a motorist's car under a statute that, at the time, allowed such searches of vehicles after an arrest. The statute was later struck down as unconstitutional, but Daniel held that the officer's reliance on the statute was reasonable at the time given prior caselaw that supported vehicle searches after an arrest. 291 Kan. at 505; see also State v. Dennis, 297 Kan. 229, 230, 300 P.3d 81 VOL. 312 SUPREME COURT OF KANSAS 415

City of Kingman v. Ary

(2013) (officer need not specifically articulate statute authorizing search if an objectively reasonable officer could rely on a statute). Daniel was not unanimous. The dissent would have held this court need not always afford the same protections under § 15 of the Kansas Constitution as the United States Supreme Court allows under the Fourth Amendment even though we had traditionally done so. The dissent would not extend the good-faith exception to encompass an officer's reliance on a statute because to do so requires police—members of the executive branch—to perform the judicial function of statutory interpretation. 291 Kan. at 506- 07 (Johnson, J., dissenting). According to the dissent, in Candy Daniel's situation, the law enforcement officer's reliance was not solely on statutory text but also on previous judicial interpretations of United States Supreme Court precedent. 291 Kan. at 507- 08 (Johnson J., dissenting). Then, in State v. Pettay, 299 Kan. 763, 772, 326 P.3d 1039 (2014), this court declined to extend Daniel because the search in Pettay exceeded the scope authorized by the statute. A concurring opinion in Pettay reiterated the objection to the Daniel court's expansion of the good-faith exception and disagreed with the concept that the only purpose of the exclusionary rule was to deter police misconduct. The concurring opinion noted that other func- tions of the exclusionary rule include preservation of judicial integrity and preventing the government from profiting from fruits of lawless behavior. 299 Kan. at 772-73 (Johnson, J., concurring). Next came Perkins, 310 Kan. 764. There, we applied the good-faith exception to warrantless breath tests obtained under K.S.A. 2012 Supp. 8-1025. 310 Kan. at 770-71. The concurring opinion in Perkins cited the Daniel dissent and suggested that it may be time to revisit "whether Kansas should continue to apply the good-faith exception in lockstep with federal caselaw." But the parties had not raised those arguments, so a unanimous court applied the good-faith exception. Perkins, 310 Kan. at 771-72 (Luckert, J., concurring). Perkins concerned breath tests and did not discuss blood tests. Ary seeks to suppress his blood test and questions whether the Leon good-faith exception also applies to warrantless blood tests 416 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary obtained under K.S.A. 2013 Supp. 8-1025. But he raises no arguments suggesting the difference between a blood and a breath test could lead to a different application of the good-faith exception. Instead, he asks us to reverse Perkins. Ary's counsel also represents Trenton Heim in an appeal we decide today. State v. Heim, 312 Kan. 420, ___ P.3d ___ (No. 115,980, this day decided). Ary and Heim present identical arguments about the legal question of whether the good-faith exception applies, and our analysis is likewise identical in most respects, although the facts of each case require a separate analysis. Appellate courts consider legal arguments de novo. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018) (appellate courts review district court's factual findings related to motion to suppress to determine whether they were supported by substantial competent evidence, but the ultimate legal conclusion is a question of law reviewed de novo). In asking us to reverse Perkins, Ary and Heim face a difficult task. "We do not overrule precedent lightly and must give full consideration to the doctrine of stare decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). This is largely because "'[t]he application of stare decisis ensures stability and continuity— demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990]). Even so, stare decisis "is not a rigid inevitability but a prudent governor on the pace of legal change." State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016). This court will generally follow its precedent unless "'clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'" Crist, 277 Kan. at 715 (quoting Samsel, 246 Kan. at 356). Ary and Heim cite no change in conditions since Perkins, which we decided just one year ago. But they do argue that Per- kins was originally erroneous. In doing so, they present three arguments. VOL. 312 SUPREME COURT OF KANSAS 417

City of Kingman v. Ary

First, they reiterate the points made in the Perkins concurring opinion and in the dissent in Krull, 480 U.S. at 362 (O'Connor, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting) ("Un- like the Court, I see a powerful historical basis for the exclusion of evidence gathered pursuant to a search authorized by an unconstitutional statute. Statutes authorizing unreasonable searches were the core concern of the Framers of the Fourth Amendment."). But the Krull dissent did not persuade the United States Supreme Court majority, largely because of the majority's assumptions that legislators follow their oaths and courts presume statutes constitutional. 480 U.S. at 351-52. Plus, the Krull majority carved an exception for situations in which reliance on those assumptions was not objectively reasonable. 480 U.S. at 355. And in relying on Krull, this court in Perkins, 310 Kan. at 770 (discussing Krull), and Daniel, 291 Kan. at 499-500 (same), at least implicitly determined the Krull dissent was not persuasive. Nor did a majority find the Perkins concurring opinion persuasive. Ary offers no new argument. Second, Ary and Heim argue the officer could not have acted in good faith because K.S.A. 2013 Supp. 8-1025 was clearly unconstitutional. They assert the officer should have realized 8-1025 was unconstitutional and that the Legislature had abandoned its duty to pass constitutional laws. But this situation is like Krull and Daniel where judicial precedent gave the officer an objectively reasonable basis to rely on and enforce the statute. Krull, 480 U.S. at 355-58; Daniel, 291 Kan. at 499; see Davis v. United States, 564 U.S. 229, 240, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) ("The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case."). For example, in considering K.S.A. 2013 Supp. 8-1025, the Kansas Court of Appeals had held a DUI defendant has "no constitutional right to refuse to be tested." State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 927-28, 198 P.3d 163 (2008). And, at the time of Ary's arrest, Kansas courts had consistently upheld the constitutionality of warrantless blood draws undertaken under K.S.A. 2013 Supp. 8-1001. See, e.g., Martin v. Kansas Dept. of 418 SUPREME COURT OF KANSAS VOL. 312

City of Kingman v. Ary

Revenue, 285 Kan. 625, 176 P.3d 938 (2008); Popp v. Motor Ve- hicle Department, 211 Kan. 763, 508 P.2d 991 (1973). When the officer arrested Ary, the officer had no reason to know this court would hold that the implied consent advisories were impermissibly coercive two years after Ary's arrest. Further, Kansas statutory implied consent law is not unique. Other states had statutes like K.S.A. 2013 Supp. 8-1025 and continued to uphold them until the United States Supreme Court ruled in Birch- field that these types of criminal penalty laws are unenforceable as to blood tests. See, e.g., Wing v. State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (upholding the constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that criminalizes refusal to submit to blood-alcohol test passes rational basis review). The Kansas implied consent statutes were not so clearly unconstitutional at the time of Ary's arrest that a reasonably well- trained officer would have known that they were unconstitutional. By giving the advisories and informing Ary that the State could charge him with a separate crime for refusing to submit to a blood test, the officer was merely fulfilling his responsibility to enforce the statutes as written, and suppression of the evidence would not serve the deterrent aim of the exclusionary rule. For these same reasons, the Kansas Legislature did not wholly abandon its responsibility to pass constitutional laws. Finally, Ary argues more harm than good will result from Per- kins because "who now would ever spend the time and money to challenge an unconstitutional statute under the Fourth Amend- ment?" But this argument ignores cases such as Pettay, 299 Kan. at 772, in which we held the good-faith exception did not apply. The Krull majority noted the similar argument raised by Justice O'Connor: "Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws." 480 U.S. at 366 (O'Connor, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting). The Krull majority countered that the exceptions it had created left a path for courts to exclude the evidence because the VOL. 312 SUPREME COURT OF KANSAS 419

City of Kingman v. Ary good-faith exception did not apply. See 480 U.S. at 355 (citing circumstances where Legislature "wholly abandoned its responsibility to enact constitutional laws" and law enforcement officer's reliance was not objectively reasonable). We have previously considered and rejected many of Ary's and Heim's arguments. They offer no persuasive reason for us to abandon Perkins. We hold the Court of Appeals did not err in applying the good-faith exception, and the district court did not err in holding Ary's blood test result was admissible.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

BEIER, J., not participating. 1 MICHAEL E. WARD, Senior Judge assigned.

* * *

STEGALL, J., concurring: I agree with today's holding that the good faith exception applies in this case. I continue, however, to disagree with the conclusion that this search was unconstitutionally coerced. See State v. Ryce, 303 Kan. 899, 971-72, 368 P.3d 342 (2016) (Stegall, J., dissenting) ("Because it is reasonable to conclude that [K.S.A. 2013 Supp. 8-1025] prohibits conduct, in some circumstances, that is not constitutionally protected, the constitutionality of the statute can only be determined on a case-by- case, as applied, basis and we should not declare the statute to be facially unconstitutional."). As such, I concur in the result.

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 114,413 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

420 SUPREME COURT OF KANSAS VOL. 312

State v. Heim

No. 115,980

STATE OF KANSAS, Appellee, v. TRENTON MICHAEL HEIM, Appellant.

___

SYLLABUS BY THE COURT

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 20, 2018. Appeal from Reno District Court; TRISH ROSE, judge. Opin- ion filed November 20, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, was on the briefs for appellant.

Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, former district attorney, Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: In this appeal, Trenton Michael Heim argues a warrantless blood test obtained under the implied consent statute was unconstitutional per Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); State v. Ryce, 306 Kan. 682, 699-700, 396 P.3d 711 (2017) (Ryce II); and State v. Nece, 306 Kan. 679, 681, 396 P.3d 709 (2017) (Nece II). But the State argues the district court could consider the blood test results because the good-faith exception to the exclusionary rule allowed the district court to consider the results of Heim's blood test. State v. Heim, No. 115,980, 2018 WL 1884093 (Kan. App. 2018) (unpublished opinion). Heim asks us to reverse the panel's holding that the good-faith exception applies. Heim recognizes this court's holding in State v. Perkins, 310 Kan. 764, 449 P.3d 756 (2019), in which we held the VOL. 312 SUPREME COURT OF KANSAS 421

State v. Heim good-faith exception applies to breath tests for blood alcohol content collected under the unconstitutional implied consent statute. But Heim asks us to revisit Perkins. In doing so, he does not base any of his arguments on the differences between blood and breath tests, and he does not persuade us to abandon our recent decision in Perkins. We thus affirm the Court of Appeals' and the district court's decisions to allow consideration of the blood test results, which presumptively showed Heim was guilty of DUI.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2015, a law enforcement officer investigating a vehicle crash involving Heim arrested Heim for driving under the influence (DUI). The officer gave Heim the statutorily required implied consent advisories, both orally and through the written DC- 70 form. Heim requested a blood test, which was drawn at a hospital. Officers did not get a search warrant. The sample, taken within three hours of driving, measured .19 grams per 100 milliliters of blood. Heim filed a motion to suppress the blood test results as unconstitutional. The district court denied the motion and conducted a bench trial on stipulated facts. The district court found Heim guilty of DUI. The Court of Appeals affirmed. State v. Heim, No. 115,980, 2018 WL 1884093 (Kan. App. 2018) (unpublished opinion). On appeal, Heim argued the blood test was unconstitutional. See Birchfield, 136 S. Ct. 2160; Ryce II, 306 Kan. at 699-700; Nece II, 306 Kan. at 681. But, for the first time on appeal, the State argued the good-faith exception applied and allowed the district court to consider the results of the blood test. Heim argued the State could not raise the exception for the first time on appeal and that it did not apply. The Court of Appeals panel rejected both arguments. First, the panel held that the State could raise the good-faith exception for the first time on appeal because the United States Supreme Court had not decided Birchfield before Heim's arrest and there was no reason for the State to raise the issue. It was thus a newly relevant theory and involved only a question of law. 2018 WL 1884093, at *2. Second, the panel held the good-faith exception applied because there was no reason for the officer to know 422 SUPREME COURT OF KANSAS VOL. 312

State v. Heim the statute would be found unconstitutional. The panel thus affirmed the conviction. 2018 WL 1884093, at *4. Heim petitioned for review, arguing the Court of Appeals panel erred in holding the good-faith exception applied. He did not seek our review of the holding that the State could raise the exception for the first time on appeal and has thus waived our consideration of that issue. In re A.A.-F., 310 Kan. 125, 134, 444 P.3d 938 (2019); see also Supreme Court Rule 8.03(b)(6)(C)(i) (2020 Kan. S. Ct. R. 54) ("The Supreme Court will not consider issues . . . not presented or fairly included in the petition for review."). As to remaining question of whether the good-faith exception applies, after granting review over the Court of Appeals' decision, this court held in Perkins, 310 Kan. 764, that the good-faith exception to the exclusionary rule allowed courts to consider evidence from breath tests obtained in reliance on the unconstitutional implied consent statute. After that decision, we asked Heim and the State to show cause why Perkins does not control the outcome of this appeal. Heim asked us to revisit Perkins.

ANALYSIS

To provide context to Heim's request and our review, we begin by summarizing legal developments about the constitutional issues raised by implied consent laws and blood alcohol (BAC) testing of impaired drivers up through this court's decision in Per- kins. Two lines of cases are relevant: (1) those defining BAC testing as a search and (2) cases discussing the good-faith exception.

1. Search

Several cases establish that a test for blood alcohol content is a search. E.g., Birchfield, 136 S. Ct. at 2173; Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). This point is critical to Heim's argument because the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches. And a warrantless search is per se unreasonable unless a valid exception to the Fourth Amendment applies. Ari- zona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 VOL. 312 SUPREME COURT OF KANSAS 423

State v. Heim

(2014). Recognized exceptions in Kansas include consent, search incident to lawful arrest, and exigent circumstances, among others. Neighbors, 299 Kan. at 239. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), was the United States Supreme Court's "first foray into considering intrusions into the human body." State v. Ryce, 303 Kan. 899, 920, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). In that case, officers obtained a blood test from a driver over his objection; the Court held that—under the particularized facts of that case—the warrantless search fell into the exigent circumstances exception to the Fourth Amendment warrant requirement. 384 U.S. at 770-72; see also Birchfield, 136 S. Ct. at 2174 (Schmerber's exigent circumstances exception by its nature requires case-by-case analysis and is not categorical); Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (same). After Schmerber, legislatures enacted implied consent laws, eventually in all 50 states, because states recognized that "the cooperation of the test subject is necessary when a breath test is ad- ministered and highly preferable when a blood sample is taken." Birchfield, 136 S. Ct. at 2168. Typically, these laws sought to secure this consent through revoking or suspending a driver's license as a penalty for withdrawal of the consent because every motorist impliedly consents to the testing as a condition of the privilege of driving on public roads. 136 S. Ct. at 2169; State v. Adee, 241 Kan. 825, 831, 740 P.2d 611 (1987). This was fine, constitutionally, until the Kansas Legislature enacted criminal sanctions for the withdrawal of consent. As the term "implied consent" suggests, these laws hinge on the consent exception to the Fourth Amendment warrant requirement. For consent to be valid, a person must be able to withdraw consent. Ryce I, 303 Kan. at 932. In Ryce I, the court held that the statutory language in K.S.A. 2014 Supp. 8-1025 which criminalized the driver's withdrawal of consent to BAC testing was unconstitutional. 303 Kan. at 963. In State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I), aff'd on reh'g, 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), the court held that the unconstitutional threat of criminal sanctions in K.S.A. 2014 Supp. 8-1025 unduly coerced a 424 SUPREME COURT OF KANSAS VOL. 312

State v. Heim driver's consent to BAC testing, making it involuntary. 303 Kan. at 889. Then, in Birchfield, the United States Supreme Court held that warrantless breath tests are constitutionally permissible under the search incident to arrest exception to the Fourth Amendment warrant requirement, and therefore such searches are a categorical exception to the warrant requirement. 136 S. Ct. at 2185. The Court did not include blood tests in this holding because blood tests are far more intrusive. 136 S. Ct. at 2185. We reaffirmed Ryce I and Nece I after rehearings to consider the effect of Birchfield. Ryce II, 306 Kan. at 700; Nece II, 306 Kan. at 681. Ryce II pointed out that Birchfield concerned the search incident to arrest exception, while Ryce I and Nece I concerned the consent exception. The statute's criminalization of withdrawal of consent was thus still unconstitutional, although in Ryce II we recognized that warrantless breath tests could be constitutionally permissible as searches incident to arrest. 306 Kan. at 699-700. This led to several appeals of DUI convictions in which officers procured the BAC test under the unconstitutional threat of criminal sanctions in K.S.A. 2015 Supp. 8-1025, repealed by L. 2019, ch. 13, § 5. The State began to argue that the good-faith exception to the exclusionary rule should apply because the officers had no reason to know that this court would declare K.S.A. 2015 Supp. 8-1025 unconstitutional, often years after the arrest.

3. Good-Faith Exception

State v. Heim warrant invalid. 468 U.S. at 922-23. The Supreme Court made clear that a court should apply the exclusionary rule only when doing so deters law enforcement officers from acting in an unconstitutional manner. 468 U.S. at 906. The Court thus reserved the exclusionary remedy for circumstances in which a court "has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process." Krull, 480 U.S. at 347. Because this weighing is fact-specific, "suppression of evidence . . . should be ordered only on a case-by- case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Leon, 468 U.S. at 918. In Krull, the United States Supreme Court expanded the Leon good-faith exception to include an officer's reasonable reliance on an unconstitutional statute. 480 U.S. at 349-50. The United States Supreme Court held, under the circumstances of that case, excluding evidence obtained when police are enforcing a statute later found to be unconstitutional would not serve the rule's purpose because it would have no deterrent effect on law enforcement. 480 U.S. at 349. The Krull Court explained:

State v. Heim of legislators who perform their legislative duties with indiffer- ence to the constitutionality of the statutes they enact." 480 U.S. at 352 n.8. Even so, the Krull Court acknowledged a point made by the dissenters and recognized situations might arise in which a legislature enacted an obviously unconstitutional statute because the legislature yielded "to the temptation offered by the Court's good- faith exception." 480 U.S. at 366 (O'Connor, J., joined by Bren- nan, Marshall, and Stevens, JJ., dissenting). But the Court concluded the objectively reasonable reliance requirement of Leon allowed courts to consider the circumstances and, where appropriate, apply the exclusionary rule:

State v. Heim

(2013) (officer need not specifically articulate statute authorizing search if an objectively reasonable officer could rely on a statute). Daniel was not unanimous. The dissent would have held this court need not always afford the same protections under § 15 of the Kansas Constitution as the United States Supreme Court allows under the Fourth Amendment even though we had traditionally done so. The dissent would not extend the good-faith exception to encompass an officer's reliance on a statute because to do so requires police—members of the executive branch—to perform the judicial function of statutory interpretation. 291 Kan. at 506- 07 (Johnson, J., dissenting). According to the dissent, in Candy Daniel's situation, the law enforcement officer's reliance was not solely on statutory text but also on previous judicial interpretations of United States Supreme Court precedent. 291 Kan. at 507- 08 (Johnson J., dissenting). Then, in State v. Pettay, 299 Kan. 763, 772, 326 P.3d 1039 (2014), this court declined to extend Daniel because the search in Pettay exceeded the scope authorized by the statute. A concurring opinion in Pettay reiterated the objection to the Daniel court's expansion of the good-faith exception and disagreed with the concept that the only purpose of the exclusionary rule was to deter police misconduct. The concurring opinion noted that other func- tions of the exclusionary rule include preservation of judicial integrity and preventing the government from profiting from fruits of lawless behavior. 299 Kan. at 772-73 (Johnson, J., concurring). Next came Perkins, 310 Kan. 764. There, we applied the good-faith exception to warrantless breath tests obtained under K.S.A. 2012 Supp. 8-1025. 310 Kan. at 770-71. The concurring opinion in Perkins cited the Daniel dissent and suggested that it may be time to revisit "whether Kansas should continue to apply the good-faith exception in lockstep with federal caselaw." But the parties had not raised those arguments, so a unanimous court applied the good-faith exception. Perkins, 310 Kan. at 771-72 (Luckert, J., concurring). Perkins concerned breath tests and did not discuss blood tests. Heim seeks to suppress his blood test and questions whether the Leon good-faith exception also applies to warrantless blood tests 428 SUPREME COURT OF KANSAS VOL. 312

State v. Heim obtained under K.S.A. 2015 Supp. 8-1025. But he raises no arguments suggesting the difference between a blood and a breath test could lead to a different application of the good-faith exception. Instead, he asks us to reverse Perkins. Heim's counsel also represents Ronald S. Ary in an appeal we decide today. City of Kingman v. Ary, 312 Kan. 408, ___ P.3d ___ (No. 114,413, this day decided). Heim and Ary present identical arguments about the legal question of whether the good-faith exception applies, and our analysis is likewise identical in most respects, although the facts of each case require a separate analysis. Appellate courts consider legal arguments de novo. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018) (appellate courts review district court's factual findings related to motion to suppress to determine whether they were supported by substantial competent evidence, but the ultimate legal conclusion is a question of law reviewed de novo). In asking us to reverse Perkins, Heim and Ary face a difficult task. "We do not overrule precedent lightly and must give full consideration to the doctrine of stare decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). This is largely because "'[t]he application of stare decisis ensures stability and continuity— demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990]). Even so, stare decisis "is not a rigid inevitability but a prudent governor on the pace of legal change." State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016). This court will generally follow its precedent unless "'clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'" Crist, 277 Kan. at 715 (quoting Samsel, 246 Kan. at 356). Heim and Ary cite no change in conditions since Perkins, which we decided just one year ago. But they do argue that Perkins was originally erroneous. In doing so, they present three arguments.

VOL. 312 SUPREME COURT OF KANSAS 429

State v. Heim

First, they reiterate the points made in the Perkins concurring opinion and in the dissent in Krull, 480 U.S. at 362 (O'Connor, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting) ("Un- like the Court, I see a powerful historical basis for the exclusion of evidence gathered pursuant to a search authorized by an unconstitutional statute. Statutes authorizing unreasonable searches were the core concern of the Framers of the Fourth Amendment."). But the Krull dissent did not persuade the United States Supreme Court majority, largely because of the majority's assumption that legislators follow their oaths and courts presume statutes constitutional. 480 U.S. at 351-52. Plus, the Krull majority carved an exception for situations in which reliance on those assumptions was not objectively reasonable. 480 U.S. at 355. And in relying on Krull, this court in Perkins, 310 Kan. at 770 (discussing Krull), and Daniel, 291 Kan. at 499-500 (same), at least implicitly determined the Krull dissent was not persuasive. Nor did a majority find the Perkins concurring opinion persuasive. Heim offers no new argument. Second, Heim and Ary argue the officer could not have acted in good faith because K.S.A. 2015 Supp. 8-1025 was clearly unconstitutional. They assert the officer should have realized 8-1025 was unconstitutional and that the Legislature had abandoned its duty to pass constitutional laws. But this situation is like Krull and Daniel where judicial precedent gave the officer an objectively reasonable basis to rely on and enforce the statute. Krull, 480 U.S. at 355-58; Daniel, 291 Kan. at 499; see Davis v. United States, 564 U.S. 229, 240, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) ("The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case."). For example, in considering K.S.A. 2015 Supp. 8-1025, the Kansas Court of Appeals had held a DUI defendant has "no constitutional right to refuse to be tested." State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 927-28, 198 P.3d 163 (2008). And, at the time of Heim's arrest, Kansas courts had consistently upheld the constitutionality of warrantless blood draws undertaken under K.S.A. 2015 Supp. 8-1001. See, e.g., Martin v. Kansas Dept. of 430 SUPREME COURT OF KANSAS VOL. 312

State v. Heim

Revenue, 285 Kan. 625, 176 P.3d 938 (2008); Popp v. Motor Ve- hicle Department, 211 Kan. 763, 508 P.2d 991 (1973). When the officer arrested Heim, the officer had no reason to know this court would hold that the implied consent advisories were impermissibly coercive 10 months after Heim's arrest. Fur- ther, Kansas statutory implied consent law is not unique. Other states had statutes like K.S.A. 2015 Supp. 8-1025 and continued to uphold them until the United States Supreme Court ruled in Birchfield that these types of criminal penalty laws are unenforceable as to blood tests. See, e.g., Wing v. State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (upholding the constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that criminalizes refusal to submit to blood-alcohol test passes rational basis review). The Kansas implied consent statutes were not so clearly unconstitutional at the time of Heim's arrest that a reasonably well- trained officer would have known that they were unconstitutional. By giving the advisories and informing Heim that the State could charge him with a separate crime for refusing to submit to a blood test, the officer was merely fulfilling his responsibility to enforce the statutes as written, and suppression of the evidence would not serve the deterrent aim of the exclusionary rule. For these same reasons, the Kansas Legislature did not wholly abandon its responsibility to pass constitutional laws. Finally, Heim argues more harm than good will result from Perkins because "who now would ever spend the time and money to challenge an unconstitutional statute under the Fourth Amend- ment?" But this argument ignores cases such as Pettay, 299 Kan. 772, in which we held the good-faith exception did not apply. The Krull majority noted the similar argument raised by Justice O'Connor: "Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws." 480 U.S. at 366 (O'Connor, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting). The Krull majority countered that the exceptions it had created left a path for courts to exclude the evidence because the VOL. 312 SUPREME COURT OF KANSAS 431

State v. Heim good-faith exception did not apply. See 480 U.S. at 355 (citing circumstances where Legislature "wholly abandoned its responsibility to enact constitutional laws" and law enforcement officer's reliance was not objectively reasonable). We have previously considered and rejected many of Heim's and Ary's arguments. They offer no persuasive reason for us to abandon Perkins. We hold the Court of Appeals did not err in applying the good-faith exception, and the district court did not err in holding Heim's blood test result was admissible.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

BEIER, J., not participating. MICHAEL E. WARD, Senior Judge assigned.1

* * *

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 115,980 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

432 SUPREME COURT OF KANSAS VOL. 312

Building Erection Svcs. Co. v. Walton Construction Co.

No. 117,839

BUILDING ERECTION SERVICES COMPANY, INC., Appellant. v. WALTON CONSTRUCTION COMPANY, INC., and AMERICAN HOME ASSURANCE COMPANY, Appellees, Walton Construction Company, Inc., Appellee, v. BUILDING ERECTION SERVICES COMPANY, INC., Appellant.

___

SYLLABUS BY THE COURT

1. COURTS—Panels of Court of Appeals May Depart from Law of the Case—No Lower Court May Circumvent Mandate Rule. While different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court.

2. APPELLATE PROCEDURE—Failure to File Petition for Review Bound by Holding of Court of Appeals. A party who fails to petition the Kansas Supreme Court for review of a Court of Appeals decision is bound by the holding of that decision.

3. DAMAGES—Question of Proper Apportionment of Damage Award—Er- ror for Court of Appeals to Decline Remand to District Court. Upon the facts of this case—where liability has been established, the record clearly shows the injured party has sustained damages, and the only remaining question is the proper apportionment of damages to be awarded—it was error for the Court of Appeals to decline to remand the matter to the district court.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 20, 2018. Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed November 20, 2020. Judgment of the Court of Appeals reversing the judgment of the district court is affirmed in part, reversed in part, and vacated in part. Judgment of the district court is reversed, and the case is remanded with directions.

R. Scott Beeler, of Lathrop Gage LLP, of Overland Park, argued the cause, and Carrie E. Josserand, of the same firm, and Kurt S. Brack, of Brown & Ruprecht, of Kansas City, Missouri, were with him on the briefs for appellant.

Danne W. Webb, of Horn Aylward & Bandy, LLC, of Kansas City, Mis- souri, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by

VOL. 312 SUPREME COURT OF KANSAS 433

Building Erection Svcs. Co. v. Walton Construction Co.

WALL, J.: This decision resolves the third appeal in this Od- yssean litigation between Walton Construction Company (Wal- ton) and Building Erection Services Company (BESCO) over liability and damages resulting from faulty construction on the Uni- versity of Kansas' Memorial Stadium. This appeal arises from the district court judge's third attempt at entering a damages award in favor of Walton. Below, the Court of Appeals reversed the damages and attorney fee award for failure to abide by the law of the case and the mandate rule and lack of substantial competent evidence. The Court of Appeals also declined to remand for determination of a new award amount. We affirm the Court of Appeals' finding that the district court judge violated the mandate rule with the third damages award. Be- cause we reverse the damages award on this ground, we need not reach the second question of whether the most recent award is supported by substantial competent evidence. Finally, we hold that the Court of Appeals erred by declining to remand this case to the district court for a new award. Accordingly, we remand this case to the district court for a damages and attorney fee award that complies with the binding mandates from the first two appeals in this case.

FACTS AND PROCEDURAL BACKGROUND

More than a decade into litigation, we assume that the parties are well-acquainted with the facts and procedural history of this case. The issue of liability has been decided and consistently affirmed in favor of Walton, leaving only the question of damages and attorney fees at issue. As such, we recite only those facts necessary to explain our holding. In 1999, the University of Kansas (KU) built a new press box for its football stadium. Walton was the project's general contractor. Walton hired BESCO to install structural steel and the press box's glass curtain wall. The parties' relationship was memorial- ized in a subcontractor agreement, through which BESCO agreed to indemnify Walton against claims and losses related to BESCO's work. 434 SUPREME COURT OF KANSAS VOL. 312

Building Erection Svcs. Co. v. Walton Construction Co.

Shortly after the press box was completed, KU discovered that the new construction leaked badly. Because of the leaks, KU withheld a more than $400,000 payment from Walton. Walton, in turn, did not pay BESCO the remaining $26,548.54 it was owed. Dur- ing the ongoing dispute between KU and Walton, KU brought in an external engineering contractor to identify the source of the leaking near the press box's windows and propose solutions. This contractor produced the "Slemmons report." The report did not delve into subcontractor liability for the leaks but merely allocated responsibility between KU and Walton. The report found KU 10% responsible for the leaks, the architects 10% responsible, and Wal- ton 80% responsible. In 2002, BESCO sued Walton and KU to recover the $26,548.54 payment that was being withheld, thus beginning this trail of litigation. After a series of studies and attempted fixes, KU decided to take apart a section of the press box in 2004 to determine and remedy the source of the leaks. During this examination, KU discovered that BESCO had used inadequate screws to attach the glass curtain wall to the press box's steel structure. This posed a large safety risk. KU opted to fix both the leaks and the fastener issue at the same time. To do so, they removed and replaced all the glass and the metal walls. BESCO was again subcontracted on the press box project, this time to remediate the glass. In 2005, Walton and KU settled their dispute over liability for the leaks and fastener issue. Walton acknowledged it had breached its contract. Walton paid KU over $600,000, and KU assigned its claims against BESCO to Walton. BESCO was not a party to this agreement. Walton then sued BESCO for indemnification for its damages and KU's damages, as well as both Walton's and KU's attorney fees. A district court judge consolidated this case with BESCO's earlier suit. After a bench trial, the district judge found that BESCO breached its contract with Walton when it failed to follow the correct shop drawings and used inadequate screws for fastening. The district judge ordered BESCO to pay Walton over a million dollars, including the entire cost of the press box repairs and Walton's attorney fees. BESCO appealed. In Building Erection Services Co. v. Walton Construction VOL. 312 SUPREME COURT OF KANSAS 435

Building Erection Svcs. Co. v. Walton Construction Co.

Co., No. 100,906, 2009 WL 4639486 (Kan. App. 2009) (unpublished opinion) (BESCO I), a Court of Appeals panel affirmed BESCO's liability to Walton for breach of contract but reversed and remanded the damages award for lack of substantial competent evidence. On remand, the district judge entered a new award of almost $900,000, accounting for all of Walton's and KU's attorney fees and half the cost of removing and replacing the press box's glass and metal panels. BESCO again appealed. In Building Erection Services Co. v. Walton Construction Co., No. 111,706, 2015 WL 4879075 (Kan. App. 2015) (unpublished opinion) (BESCO II), a different Court of Appeals panel again reversed the amount of damages for lack of substantial competent evidence. Neither party petitioned for review of that decision. On remand for the second time, the district judge entered his third award. This time, he ordered BESCO to pay 85% of the cost of removing and replacing the metal panels, and 50% of the cost of removing and replacing the glass. Also, the district judge again ordered BESCO to pay the attorney fees that the Court of Appeals reversed in BESCO II, as well as further fees Walton accrued during the continuing litigation. BESCO appealed again. In Building Erection Services Co. v. Walton Construction Co., No. 117,839, 2018 WL 3485670 (Kan. App. 2018) (unpublished opinion) (BESCO III), yet another panel of the Court of Appeals again reversed the damages award and attorney fee award for failure to abide by the law of the case and the mandate rule and lack of substantial competent evidence. This time, the panel declined to remand for determination of a new award amount. This court granted Walton's petition for review of BESCO III.

DISCUSSION

The District Court's Third Award Was Prohibited by the Mandate Rule.

The parties first dispute whether the district judge's third award complied with the mandates in BESCO I and II. To answer this question, we must first ascertain what those mandates were. "Whether a district court complied with a Court of Appeals mandate, and the proper interpretation of a mandate, are questions of law over which we 436 SUPREME COURT OF KANSAS VOL. 312

Building Erection Svcs. Co. v. Walton Construction Co. exercise de novo review." Einsel v. Einsel, 304 Kan. 567, 584, 374 P.3d 612 (2016).

The BESCO I Mandate

In BESCO I, BESCO appealed the district judge's damage award ordering it to pay the entire cost of the press box remediation. First, the panel held that Walton was entitled to indemnification under the parties' contract. BESCO I, 2009 WL 4639486, at *5. The panel correctly identified the controlling provisions in the contract's indemnification clause:

"'To the fullest extent permitted by law, [BESCO] shall indemnify and hold harmless [Walton] from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of [BESCO's] Work under this Subcontract, . . . but only to the extent caused in whole or in part by negligent acts or omissions of [BESCO], regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.' (Emphasis added.)" 2009 WL 4639486, at *5.

The BESCO I panel held that "[t]he district court's award of all of the damages against BESCO is not supported by either the indemnification language in the contract between BESCO and Walton, or the record on appeal." 2009 WL 4639486, at *7. It noted that "there is no evidence in the record on appeal that ties Walton's requested damages, or the total cost of remediation, to BESCO's failure to follow the correct shop drawings." (Emphasis added). 2009 WL 4639486 at *6. The panel held that "the district court erred in assessing all of the damages against BESCO." 2009 WL 4639486, at *7. It therefore "reverse[d] and remand[ed] this issue to the district court for a determination of those damages that arose out of, or resulted from, BESCO's negligent acts or omissions." 2009 WL 4639486, at *7. In other words, Walton had failed to show causation between BESCO's faulty workmanship and all the costs of remediation. The district court did not find that BESCO's work caused the leaks, so it reasoned that BESCO should not have to pay all the costs of remediation, since some of those remediation costs were due to the leaks, not the fastener issues. Thus, the mandate of BESCO I was to apportion the damages according to BESCO's actual fault, i.e., those "arising out of or resulting from performance" of BESCO's faulty work under the contract. See VOL. 312 SUPREME COURT OF KANSAS 437

Building Erection Svcs. Co. v. Walton Construction Co.

2009 WL 4639486, at *5. Walton petitioned for this court's review of BESCO I, which we declined. The BESCO I mandate therefore became binding on the district court.

The BESCO II Mandate

On remand for the first time, after additional discovery and an evidentiary hearing, the district judge, in his second award, reduced Walton's recovery from the full cost of the press box remediation to half the cost of the glass and metal removal and rein- stallation, plus a proportionate amount of the overhead from the repairs. He also awarded Walton its attorney fees as well as KU's attorney fees and costs. BESCO again appealed. It argued that the damages award was not supported by substantial competent evidence. In BESCO II, a different Court of Appeals panel wrote that "the determinative issue on remand was whether Walton proved by substantial competent evidence that the claims arising from the scope of BESCO's contracted work under BESCO's subcontract caused in whole or in part the water infiltration problem. We think not." BESCO II, 2015 WL 4879075, at *17. The panel held that "the trial court's apportionment between Walton and BESCO is inconsistent with the assignment of fault contained in the Slemmons report and with BESCO's scope of work under its subcontract." 2015 WL 4879075, at *18. The panel characterized the 50/50 split of costs for the glass and metal panel removal and replacement as "an unreliable approximation of BESCO's responsibility." 2015 WL 4879075, at *19. Finally, the BESCO II panel also reversed and remanded the attorney fee award, reasoning that there was no nexus between the award and BESCO's scope of work, as BESCO I required:

"Walton offers no explanation for how BESCO is liable for it or KU's assigned attorney fees and costs incurred before anyone even realized that there was a problem with BESCO's work. Such a conclusion would violate the law of the case established in BESCO I." 2015 WL 4879075, at *21.

As to the damages issue, the BESCO II panel observed that the district court was required, by the contract and the mandate of BESCO I, to allocate the costs of the press box remediation "according to Walton's and BESCO's respective scope of work." 2015 438 SUPREME COURT OF KANSAS VOL. 312

Building Erection Svcs. Co. v. Walton Construction Co.

WL 4879075, at *18. However, BESCO I cannot be construed as a mandate that Walton had to prove BESCO's defective work caused the leaks in order to recover the costs of remediating the fastener issue. Rather, BESCO I's mandate was to adjust the damages award to correspond only with those costs of remediation attributable to BESCO. Indeed, the parties' contract provides that BESCO shall indemnify Walton for "claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of [BESCO's] Work . . . but only to the extent caused in whole or in part by negligent acts or omissions of [BESCO]." For this reason, we are sympathetic to Walton's argument that substantial competent evidence supported the district court's finding, in its second award, that BESCO was responsible for 50% of the costs of removing and replacing the glass and metal panels. The record includes evidence suggesting the glass and metal panels had to be removed to properly remediate BESCO's defective fastener work. Likewise, the record included evidence that remediation of the water infiltration also required removal of the glass and metal panels. Because both remediation issues (water and fastener) were rectified at the same time and both required removal of the glass and metal panels, a 50/50 split of these remediation costs may have been a reasonable computation of BESCO's responsibility. See Cerretti v. Flint Hills Rural Elec. Co-op. Ass'n, 251 Kan. 347, 362, 837 P.2d 330 (1992) ("A reasonable basis for computation and the best evidence obtainable under the circumstances should enable the trier of fact to make an estimate which provides an adequate recovery of damages."). Nevertheless, Walton did not petition for this court's review of BESCO II, foreclosing our ability to review this issue. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013) ("A party aggrieved by a decision of the Court of Appeals on a particular issue must seek review in order to preserve the matter for Kansas Supreme Court review."); Supreme Court Rule 8.03(c)(3) (2020 Kan. S. Ct. R. 52). As a result, under the BESCO II mandate, the district judge was again charged with the task on remand to determine what portion of the remediation costs and attorney fees were "attributable VOL. 312 SUPREME COURT OF KANSAS 439

Building Erection Svcs. Co. v. Walton Construction Co. to the contracted work performed by BESCO that fell under the indemnity provision of BESCO's subcontract,"—this time with full knowledge that the mandates of BESCO I and II foreclosed any award of 50% or more of the costs of removing the glass and metal panels. BESCO II, 2015 WL 4879075, at *18. On remand for the second time, the parties did not present additional evidence, and the district judge entered his third award on the existing record. In the third award, the district judge challenged the BESCO I and II mandates in light of his prior factual findings: "There seems to be confusion regarding the nature and the im- portance of the Slemmons report as it relates to the fastener issue. In BESCO II, the Court of Appeals noted that the BESCO I panel held that 'The remediation work was initially started only because of the extensive water infiltration, in which both the Slemmons and ED reports did not attribute any fault to BESCO.' BESCO II at *10 (citing BESCO I at *6). This is unfortunate because while this may have been the BESCO I panel's understanding at the time, the facts found by this Court establish otherwise. . . . "The BESCO II panel misunderstands the role of the Slem- mons report. . . . "The panel places too much emphasis on the Slemmons report. The determinative issue here is not whether Walton proved by substantial competent evidence that BESCO's subpar work caused water infiltration. Rather, the issue here is whether Walton satisfactorily proved that the renovations were caused in whole [or] in part by BESCO's failure to use the correct shop drawings to install the curtain wall system. This Court believes that the findings of fact from BESCO I and BESCO II incorporated into this decision show that the renovation was made necessary because of the anchoring issues caused by BESCO. The water infiltration was not the primary concern. The anchoring issue, and the hazard of certain casualty if the curtain wall system failed fueled the renovations. Even though the renovations fixed separate issue[s] that caused the water infiltration, it is clear that the main purpose of renovating was to anchor the curtain wall system properly." The district judge also discussed the applicability of the law of the case doctrine. Erroneously, he concluded that the mandate 440 SUPREME COURT OF KANSAS VOL. 312

Building Erection Svcs. Co. v. Walton Construction Co. rule did not prohibit him from entering an award of 50% or more of the glass and metal remediation costs because "[t]his case has been anything but final." Ultimately, the district judge entered a new award granting Walton a higher percentage (85%) of the metal costs, the same percentage of glass costs, and the same attorney fees overturned in BESCO II, plus new attorney fees accrued in the ongoing litigation.

The District Court's Damage Award Is Prohibited by the Mandate Rule.

In this appeal, BESCO argues that "[t]he binding law of the case and the mandates established in BESCO I do not permit an award to Walton for any of the remediation costs incurred for removing metal panels or glass removal." Walton, on the other hand, encourages this court to adopt the district judge's reasoning that the law of the case doctrine and mandate rule did not foreclose his third award because the law of the case doctrine is discretionary, and the case was "anything but final." Walton also argues that the third award did comply with what it considers to be the Court of Appeals' mandates. In State v. Kleypas, 305 Kan. 224, 296-97, 382 P.3d 373 (2016), we explained the binding effect of a mandate and its limiting impact on subsequent proceedings in district court:

"Two statutes address the controlling nature of a mandate. K.S.A. 60- 2106(c) provides, in relevant part, that the mandate of this court 'shall be controlling in the conduct of any further proceedings necessary in the district court.' And K.S.A. 20-108 states that a district court must execute any further proceedings 'according to the command of the appellate court made therein.' Under the plain language of these statutes, a district court is required to apply the mandate without exception. Collier, 263 Kan. at 637. The Collier court made this point emphatically, stating: 'It is axiomatic that on remand for further proceedings after a decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal.' 263 Kan. 629, Syl. ¶ 4. "Some jurisdictions, notably several federal circuit courts, hold that a trial court may depart from a mandate in order to obey new law without first asking permission from the appellate court. See 18B Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4478.3 (2002). While this court has recognized its power to recall, correct, amplify, or modify its own mandate, e.g., West v. Insurance Co., 105 Kan. 414, 415-16, 185 P. 12 (1919), Kansas cases have not recognized the power of a district court to unilaterally depart from the VOL. 312 SUPREME COURT OF KANSAS 441

Building Erection Svcs. Co. v. Walton Construction Co. mandate, even when a change in the law has occurred. And neither K.S.A. 60- 2106(c) nor K.S.A. 20-108 contemplate such an exception. See State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013) (appellate court cannot delete provisions or supply omissions in a statute). Hence, we conclude the district court was duty bound to comply with the mandate as written. K.S.A. 60-2106(c); Collier, 263 Kan. 629, Syl. ¶ 4."

So while different panels of the Court of Appeals hearing successive appeals in the same case may, in exceptional circumstances, depart from the law of the case, under Kansas law no exceptional circumstances permit a lower court to circumvent the mandate of a higher court, a result that logically follows from the hierarchical court system. See 18B Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4478 (2002) ("Principles of authority, however, do inhere in the 'mandate rule' that binds a lower court on remand to the law of the case established on appeal. The very structure of a hierarchical court system demands as much."). While the district judge's second award—the 50/50 damages split—likely complied with the spirit of BESCO I's mandate to assess the damages according to the parties' contract, BESCO II held that a 50/50 split was not supported by substantial competent evidence. On the second remand, the district judge was bound by the mandate rule to this holding. Insofar as the district judge's third award again granted Walton 50% of the cost of the glass remediation, it violated the mandate rule. The award of 85% of the metal panel remediation costs also violated the mandate rule because the prohibition of such an award is logically implied in BESCO II's ruling: if 50% of the metal panel costs are not supported by substantial competent evidence, a larger percentage of the costs also lacks support by substantial competent evidence. See State v. Tafoya, 304 Kan. 663, 670, 372 P.3d 1247 (2016) ("[T]he substance of the Court of Appeals ruling controls over the form its ruling takes."). In Gannon v. State, 303 Kan. 682, Syl. ¶ 2, 368 P.3d 1024 (2016), we explained that the mandate rule compels the district court to implement both the letter and spirit of the appellate court's opinion:

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"It is axiomatic that on remand for further proceedings after a decision by an appellate court, the district court must proceed in accordance with the appellate court mandate. The district court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces, and it has no authority to consider matters outside the mandate."

Here, the substance or the "spirit" of BESCO II foreclosed a damages award of 50% or more of the costs of the glass and metal panel remediation. And Walton did not petition for review of this decision. Despite this, in his third award, the district judge awarded Walton damages of 50% of the cost of the glass remediation and 85% of the cost of the metal panel remediation. The district court committed reversible error by failing to follow the appellate mandates. Kleypas, 305 Kan. at 297.

The Attorney Fee Award Is also Prohibited by the Mandate Rule

Likewise, the mandate rule requires reversal of the attorney fees component of the third award. Originally, the district judge awarded Walton $250,000 in attorney fees. The BESCO I panel did not specifically address the proper allocation of Walton's attorney fees under the contract. In his second award, the district judge awarded Walton over $500,000 in attorney fees, including all of KU's attorney fees and costs. In BESCO II, the panel considered whether the award was supported by substantial competent evidence. BESCO II, 2015 WL 4879075, at *15. The panel concluded that this portion of the award included fees unrelated to the scope of BESCO's work and remanded this issue to the district court to apportion the fees consistent with the scope of the indemnification provision:

"KU's attorney-fee itemization spans more than 150 pages and includes a significant amount of work conducted from April 2003 up until the fastener problem was discovered in 2004. The same is true of Walton's attorney-fee itemization. Walton offers no explanation for how BESCO is liable for it or KU's assigned attorney fees and costs incurred before anyone even realized that there was a problem with BESCO's work. Such a conclusion would violate the law of the case established in BESCO I. Likewise, the trial court offers no explanation for why it only assessed half of the remediation damages to BESCO but ordered it to pay all of KU's and Walton's attorney fees and costs. "As a result, we reverse that portion of the trial court's judgment that orders BESCO to pay Walton's and KU's attorney fees and expenses. We remand with VOL. 312 SUPREME COURT OF KANSAS 443

Building Erection Svcs. Co. v. Walton Construction Co. directions to determine what portion of those fees and expenses that were attributable to the contracted work performed by BESCO that fell under the indemnity provision of BESCO's subcontract." 2015 WL 4879075, at *21.

Walton did not petition for review of BESCO II. Thus, like the similar holding with respect to damages, this holding formed the mandate the district judge was bound to follow on remand. Neverthe- less, in the third award, the district judge once again ordered BESCO to pay Walton over $500,000, including all of KU's attorney fees and costs, without determining what portion of these fees and expenses were attributable to the work BESCO performed under the contract. This violated the explicit mandate of BESCO II and was reversible error. Kleypas, 305 Kan. at 297.

We Do Not Decide Whether the Most Recent Award Is Supported by Substantial Competent Evidence.

Below, the Court of Appeals in this case also analyzed the third award to determine whether it was supported by substantial competent evidence. And the parties preserved that issue for this court's review. Nevertheless, we decline to reach the issue of substantial competent evidence because any ruling on such an issue would constitute dicta, as it is unnecessary to the resolution of this case. See In re Estate of Loughmiller, 229 Kan. 584, 589, 629 P.2d 156 (1981) (components of a decision not necessary to the case's holding constitute dicta). Because awards of 50% of the glass costs and 85% of the metal costs are legally barred by the mandate rule, those awards must be reversed regardless of whether they are supported by substantial competent evidence. Ac- cordingly, we decline to reach this issue and vacate the portion of the Court of Appeals' BESCO III decision holding that the third award was not supported by substantial competent evidence.

We Remand for a New Award.

In BESCO III, the Court of Appeals panel reversed the damages and attorney fee awards but declined to remand for new awards. 2018 WL 3485670, at *16-18. The panel cited this court's opinion from LSF Franchise REO I, LLC v. Emporia Restaurants, Inc., 283 Kan. 13, 42, 152 P.3d 34 (2007), which found remand to be unnecessary in limited instances:

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Building Erection Svcs. Co. v. Walton Construction Co.

"In some instances, this court will remand the case before it for a reconsideration of the evidence at the trial court level in light of its opinion. Remand is not necessary, however, where an appellate court announces no new legal principles, but instead reviews the record in light of the existing law and determines that the record cannot support the trial court's conclusions."

The BESCO III panel reasoned that "Walton has had three chances to present evidence that would support its damages award, and it has failed to do so. We see no reason to give Walton a fourth chance." 2018 WL 3485670, at *16. LSF Franchise is distinguishable from this case. There, the plain- tiff-debtor, as an entity challenging a garnishment order, had the burden to prove that it did not own the funds in the accounts being gar- nished. The district court ruled that the funds were not subject to garnishment because they did not belong to the debtor. On appeal, we held that none of the district judge's conclusions were supported by any evidence; the funds in the account belonged to the debtor. LSF Franchise, 283 Kan. at 41. We thus declined to remand because our holding that the accounts were in fact subject to garnishment required no further action from the district court. 283 Kan. at 42. In stark contrast, here, BESCO's liability to Walton has been consistently affirmed and is now the law of the case. Moreover, the record includes evidence supporting an award of damages for Walton. As the BESCO II panel acknowledged, Walton did not fail to meet its burden to prove damages. BESCO II, 2015 WL 4879075, at *12. The issue is not whether Walton can recover at all, but rather arriving at a damages and attorney fee award that comports with BESCO's liability under the parties' contract and the mandates in BESCO I and II. Moreover, while this matter has been before the district court on three occasions, Walton had only one opportunity to present evidence supporting an apportionment of damages consistent with the mandate in BESCO I. And, Walton did so. Further, we hesitate to hold Walton accountable for the district court's failure to comply with the mandates of the Court of Appeals. Under these circumstances—where liability has been established, the record clearly shows Walton has sustained damages, and the only remaining question is the proper apportionment of damages to be awarded—we hold that it was error for the Court of Appeals to decline to remand the matter to the district court.

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CONCLUSION

For the reasons explained above, we affirm the Court of Ap- peals' judgment insofar as it reversed the third award for failing to comply with the mandate rule. We vacate the portion of the Court of Appeals' opinion holding that the third award was not supported by substantial competent evidence. Finally, we reverse the Court of Appeals' decision to not remand the case, and we remand to the district court for entry of an award that complies with the mandates from BESCO I and BESCO II.

BEIER and BILES, JJ., not participating. MICHAEL E. WARD, Senior Judge, assigned.1 GRANT D. BANNISTER, District Judge, assigned.2

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 117,839 vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

2REPORTER'S NOTE: District Judge Bannister was appointed to hear case No. 117,839 vice Justice Biles under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas Constitution.