Court of Appeals

OFFICIALLY SELECTED CASES ARGUED AND DETERMINED

IN THE

COURT OF APPEALS

OF THE

STATE OF KANSAS

Reporter: SARA R. STRATTON

Advance Sheets 2d Series Volume 58, No. 3

Opinions filed in July-August 2020

Cite as 58 Kan. App. 2d

Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUDGES AND OFFICERS OF THE KANSAS COURT OF APPEALS

CHIEF JUDGE:

HON. KAREN ARNOLD-BURGER ………………… Overland Park

JUDGES:

HON. HENRY W. GREEN, JR...... Leavenworth HON. THOMAS E. MALONE ...... Wichita HON. STEPHEN D. HILL...... Paola HON. MICHAEL B. BUSER ...... Overland Park HON. MELISSA TAYLOR STANDRIDGE...... Overland Park HON. G. GORDON ATCHESON ...... Westwood HON. DAVID E. BRUNS ...... Topeka HON. ANTHONY J. POWELL ...... Wichita HON. KIM R. SCHROEDER ...... Hugoton HON. KATHRYN A. GARDNER ...... Topeka HON. SARAH E. WARNER ...... Lenexa

OFFICERS:

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

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KANSAS COURT OF APPEALS TABLE OF CASES 58 Kan. App. 2d No. 3

PAGE

Chalmers v. Burrough ...... 531 City of Colby v. Foster ...... 464 City of Shawnee v. Adem ...... 560 Fisher v. Kansas Dept. of Revenue ...... 421 Hernandez v. Pistotnik ...... 501 In re Marriage of Davis and Garcia-Bebek ...... 494 Johnson v. Kansas Dept. of Revenue ...... 431 Sandate v. Kansas Dept. of Revenue ...... 450 State v. Brown ...... 599 State v. Dunham ...... 519 State v. Lyon ...... 474 State v. Rozell ...... 570 State v. Vaughn ...... 585 State v. Williams ...... 409

(IV) UNPUBLISHED OPINIONS OF THE COURT OF APPEALS

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

617 West LLC v. Crothers .. 122,032 Sedgwick ...... 08/21/2020 Affirmed Antalek v. State ...... 120,311 Sedgwick ...... 07/24/2020 Affirmed Bohanon v. Keen ...... 122,180 Reno ...... 07/31/2020 Affirmed Cooper v. State ...... 121,576 Wyandotte ...... 07/24/2020 Affirmed Cunningham v. Andersen ... 121,551 Shawnee ...... 08/07/2020 Affirmed Davis v. State ...... 121,723 Sedgwick ...... 07/31/2020 Affirmed Elnicki v. Sauers ...... 121,975 Ellsworth...... 07/17/2020 Affirmed G S Capital Management v. White...... 121,622 Sedgwick ...... 07/24/2020 Affirmed Garcia v. State ...... 121,281 Seward ...... 08/14/2020 Affirmed Gibson v. State...... 121,522 Wyandotte ...... 07/31/2020 Affirmed Gruver Construction v. Dunning ...... 121,355 Reno ...... 07/31/2020 Affirmed Workers Hughes v. City of Compensation Hutchinson ...... 121,722 Board ...... 08/07/2020 Affirmed In re A.V., In re J.K., and In 122,295 re B.K...... 122,296 Kingman ...... 07/17/2020 Appeal dismissed 122,297 In re A.W...... 121,666 Reno ...... 07/17/2020 Affirmed In re Care & Treatment of Dominguez ...... 121,986 Rice ...... 08/07/2020 Affirmed In re D.J.B...... 122,333 Wilson ...... 07/17/2020 Affirmed In re E.S...... 122,486 Sedgwick ...... 08/21/2020 Vacated; remanded with directions In re I.H...... 122,554 Douglas ...... 07/10/2020 Affirmed In re J.S.P...... 118,790 Wyandotte ...... 07/31/2020 Affirmed In re Marriage of Huffman . 116,751 Jefferson ...... 07/31/2020 Affirmed In re Marriage of Madrigal . 120,930 Sedgwick ...... 08/21/2020 Affirmed In re Marriage of Meier ...... 121,497 Wyandotte ...... 07/24/2020 Reversed; remanded with directions In re Marriage of Pierce ..... 121,850 Johnson ...... 08/14/2020 Appeal dismissed In re N.D...... 122,349 Wyandotte ...... 07/10/2020 Affirmed In re T.W...... 122,197 Douglas ...... 07/10/2020 Affirmed Jamerson v. Heimgartner .... 121,681 Reno ...... 08/07/2020 Reversed; remanded Kamila v. University of Kansas ...... 121,249 Douglas ...... 08/21/2020 Affirmed Kansas Dept. of Revenue v. 122,142 Sciolaro ...... 122,143 Shawnee ...... 08/21/2020 Appeal dismissed 122,144 122,145 122,146

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Killough v. Kansas Dept. of Revenue ...... 121,610 Shawnee ...... 08/21/2020 Affirmed Lanier Trucking v. Long .... 120,061 Sedgwick ...... 08/14/2020 Affirmed Leavenworth County Bd. of Comm'rs v. Copeland ..... 120,616 Leavenworth ...... 07/31/2020 Affirmed Logsdon v. State ...... 120,615 Reno ...... 07/10/2020 Reversed in part; dismissed in part; remanded with directions Lowe v. Schnurr ...... 122,094 Reno ...... 07/10/2020 Affirmed McGill v. State...... 121,037 Sedgwick ...... 08/14/2020 Affirmed McMullin v. Kirch ...... 121,293 Johnson ...... 07/31/2020 Reversed; remanded with directions Merrills v. State ...... 121,502 Sedgwick ...... 08/07/2020 Affirmed Morris v. Kansas Dept. of Revenue ...... 119,511 Johnson ...... 07/24/2020 Affirmed Mounkes v. Mounkes ...... 121,335 Lyon ...... 08/21/2020 Reversed; remanded with directions Myers v. Loechler ...... 121,650 Leavenworth ...... 07/17/2020 Affirmed Newton v. Kansas Dept. of Revenue ...... 121,806 Johnson ...... 07/24/2020 Affirmed Oglesbee v. Kansas Dept. of Revenue ...... 119,659 Douglas ...... 07/17/2020 Affirmed O'Quinn v. State ...... 121,434 Sedgwick ...... 07/31/2020 Affirmed Perales v. State...... 121,580 Saline ...... 07/31/2020 Affirmed R.C. v. S.M...... 121,533 Douglas ...... 08/21/2020 Reversed; remanded with directions Reu-El v. Schnurr ...... 121,528 Reno ...... 07/24/2020 Affirmed Richardson v. Murray...... 120,680 Johnson ...... 08/14/2020 Affirmed Sander v. Kansas Dept. of Revenue ...... 121,564 Ellis ...... 08/14/2020 Affirmed State v. Allen ...... 121,752 Sedgwick ...... 07/24/2020 Affirmed State v. Alvarado ...... 121,575 Lyon ...... 07/31/2020 Sentence vacated; remanded with directions State v. Anthony ...... 121,076 Jackson ...... 08/21/2020 Affirmed in part; reversed in part State v. Antwine ...... 121,541 Sedgwick ...... 08/21/2020 Affirmed State v. Baker ...... 121,727 Clark ...... 08/21/2020 Appeal dismissed State v. Barber ...... 121,705 Saline ...... 07/31/2020 Affirmed State v. Barefield ...... 122,249 Shawnee ...... 08/07/2020 Appeal dismissed State v. Baska ...... 121,739 Johnson ...... 07/31/2020 Reversed; remanded with directions State v. Bassett...... 120,721 Reno ...... 08/21/2020 Affirmed

(VI) DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Benton...... 120,416 Sedgwick ...... 08/14/2020 Affirmed State v. Brazda ...... 122,107 Ellis ...... 07/10/2020 Reversed; remanded with directions State v. Brewer ...... 122,109 Sedgwick ...... 07/24/2020 Affirmed State v. Briceno ...... 121,494 Sedgwick ...... 07/31/2020 Affirmed 121,495 State v. Brown ...... 121,736 Sedgwick ...... 07/31/2020 Dismissed in part, 121,737 vacated in part; 121,738 remanded with directions State v. Buchanan ...... 121,969 Lyon ...... 07/31/2020 Affirmed in part; dismissed in part State v. Burnett ...... 121,780 Crawford ...... 07/31/2020 Reversed; remanded with directions State v. Claude ...... 121,103 Ellis ...... 08/21/2020 Journal entry of judgment vacated; case remanded with directions State v. Davis ...... 120,578 Shawnee ...... 07/24/2020 Affirmed in part; reversed in part; remanded with directions State v. Deleon...... 121,407 Sedgwick ...... 08/21/2020 Affirmed 121,408 State v. Eitel ...... 120,407 Shawnee ...... 08/21/2020 Appeal dismissed State v. Elad ...... 122,114 Finney ...... 07/24/2020 Affirmed State v. Ewing...... 121,882 Wyandotte ...... 07/10/2020 Affirmed State v. Fan ...... 121,995 Lyon ...... 08/21/2020 Affirmed State v. Fields ...... 121,526 Wyandotte ...... 08/07/2020 Reversed; remanded with directions State v. Griffitt ...... 122,286 Decatur ...... 07/31/2020 Affirmed State v. Hayden ...... 120,987 Sedgwick ...... 07/10/2020 Affirmed State v. Hernandez ...... 121,261 Douglas ...... 08/07/2020 Affirmed State v. Hill...... 120,991 Reno ...... 07/17/2020 Affirmed in part; reversed in part; remanded with directions State v. Hollon ...... 121,476 Sedgwick ...... 07/10/2020 Affirmed State v. Holloway...... 120,290 Jackson ...... 07/24/2020 Reversed; remanded with directions State v. Homolka ...... 121,904 Wyandotte ...... 07/10/2020 Affirmed State v. Howell ...... 120,895 Reno ...... 08/14/2020 Affirmed

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Huston...... 121,232 Ford ...... 07/24/2020 Affirmed State v. Ingram...... 121,819 Saline ...... 07/17/2020 Reversed; remanded with diretions State v. Jenkins ...... 121,370 Finney ...... 07/10/2020 Appeal dismissed State v. Judkins ...... 120,687 Johnson ...... 07/31/2020 Affirmed State v. Kilat ...... 122,095 Saline ...... 07/24/2020 Affirmed State v. Lawrence...... 120,718 Montgomery...... 07/24/2020 Affirmed in part, reversed in part; sentence vacated; case remanded with directions State v. Loggins…………… 119,888 Sedgwick………. 07/31/2020 Affirmed State v. Logsdon ...... 121,870 Sedgwick ...... 07/10/2020 Affirmed State v. Lopez-Sanchez ...... 120,900 Johnson ...... 08/07/2020 Affirmed State v. Love ...... 121,964 Wyandotte ...... 07/31/2020 Affirmed State v. Maier ...... 120,625 Douglas ...... 07/24/2020 Affirmed State v. Major ...... 121,263 Saline ...... 08/21/2020 Affirmed State v. Masterson ...... 121,153 Shawnee ...... 08/14/2020 Affirmed in part; sentences vacated; remanded with directions State v. McCray ...... 120,831 Sherman ...... 07/24/2020 Affirmed State v. Meadows ...... 121,223 Reno ...... 08/21/2020 Reversed; remanded with directions State v. Meredith ...... 120,793 Riley ...... 08/07/2020 Affirmed State v. Montgomery ...... 122,237 Johnson ...... 07/24/2020 Sentence vacated; case remanded with directions State v. Mork ...... 121,824 Sedgwick ...... 08/07/2020 Affirmed State v. Morris ...... 121,733 Johnson ...... 08/14/2020 Affirmed State v. Moya ...... 121,989 Lyon ...... 08/07/2020 Affirmed State v. Mulally ...... 119,673 Wyandotte ...... 07/17/2020 Affirmed State v. Muldrow ...... 121,477 Sedgwick ...... 07/24/2020 Affirmed State v. Nierenberg...... 121,835 Jackson ...... 08/07/2020 Affirmed State v. Odhuno ...... 121,300 Sedgwick ...... 07/24/2020 Reversed; remanded with directions State v. Odom ...... 121,329 Cherokee ...... 08/07/2020 Affirmed State v. Ordway ...... 121,440 Reno ...... 08/07/2020 Reversed; remanded State v. Parrish ...... 121,343 Sedgwick ...... 07/31/2020 Reversed; remanded with directions State v. Poncil ...... 122,247 Sedgwick ...... 07/24/2020 Affirmed

(VIII) DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Prine ...... 121,709 Reno ...... 07/24/2020 Affirmed State v. Ramagli ...... 121,802 Sedgwick ...... 07/31/2020 Affirmed State v. Reed ...... 121,205 Rice ...... 07/17/2020 Reversed; remanded with directions State v. Ritz ...... 121,550 Sedgwick ...... 08/07/2020 Affirmed State v. Robinson ...... 121,141 Jackson ...... 07/31/2020 Affirmed in part; vacated in part State v. Ross ...... 120,322 Saline ...... 08/07/2020 Affirmed State v. Rumold ...... 121,038 Lyon ...... 08/14/2020 Affirmed State v. Schmeal ...... 121,221 Riley ...... 07/10/2020 Affirmed State v. Shutts ...... 121,804 Pottawatomie...... 07/31/2020 Affirmed State v. Siebold ...... 121,291 Clay ...... 07/31/2020 Affirmed State v. Simmons ...... 121,042 Crawford ...... 07/24/2020 Affirmed State v. Smith ...... 121,245 Sedgwick ...... 07/31/2020 Affirmed State v. Spanta ...... 120,095 Johnson ...... 08/07/2020 Conviction reversed; sentence vacated State v. Speake...... 121,429 Philllips ...... 08/14/2020 Affirmed State v. Spooner ...... 121,095 Leavenworth ...... 08/07/2020 Affirmed in part; sentence vacated; remanded with directions State v. Swink ...... 122,157 Barton ...... 08/07/2020 Affirmed State v. Tearney ...... 120,340 Wyandotte ...... 07/24/2020 Affirmed State v. Timmons ...... 119,831 Sedgwick ...... 07/10/2020 Affirmed in part; reversed in part; sentence vacated; case remanded with directions State v. Turner ...... 122,015 Johnson ...... 07/24/2020 Affirmed State v. Wade ...... 121,527 Reno ...... 07/31/2020 Affirmed State v. Warren ...... 121,209 Sedgwick ...... 07/17/2020 Affirmed State v. West ...... 122,248 Sedgwick ...... 08/14/2020 Sentence vacated; case remanded with directions Stewart v. Rader ...... 121,519 Atchison ...... 07/31/2020 Reversed T.C. v. Faler ...... 122,187 Johnson ...... 07/17/2020 Affirmed Taylor v. State ...... 121,008 Shawnee ...... 08/14/2020 Affirmed Trowbridge v. Kansas Dept. of Revenue...... 119,510 Johnson ...... 07/17/2020 Affirmed Williams v. State ...... 121,327 Wyandotte ...... 07/24/2020 Affirmed Woods v. State ...... 121,466 Sedgwick ...... 07/24/2020 Affirmed Woods v. State ...... 121,444 Sedgwick ...... 07/31/2020 Affirmed

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SUBJECT INDEX 58 Kan. App. 2d No. 3 (Cumulative for Advance Sheets 1, 2 and 3) Subjects in this Advance Sheets are marked with *.

PAGE

ADMINISTRATIVE LAW:

Driver's License Suspension—Appellate Review. An appellate court reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Strickert v. Kansas Dept. of Revenue …………... 1

— Review by District Court. K.S.A. 2019 Supp. 8-259(a) requires the district court to review an agency's decision to suspend a driver's license by trial de novo to the court. Strickert v. Kansas Dept. of Revenue …………………..………..... 1

Interpretation of Administrative Regulations—Appellate Review. Any issues before this court requiring interpretation of administrative regulations raise questions of law subject to unlimited review. Appellate courts no longer extend deference to an agency's interpretation of statutes or regulations. In re Tax Appeal of River Rock Energy Co. ……………………….………… 98

Kansas Judicial Review Act—Appellate Review. In an appeal from an administrative decision under the Kansas Judicial Review Act, appellate courts exercise the same statutorily limited review of the agency action as the trial court—as though the appeal had been made directly to the appellate court. The burden of proving the agency's decision was erroneous lies with the party asserting the error. Hanson v. KCC ……………………………………………………………....82

— Authority of KCC—Appellate Review. Although the Kansas Corporation Commission is charged with interpreting and applying the statutes governing its authority, Kansas courts give no deference to agencies' interpretation of statutory language. Instead, statutory interpretation is a quintessentially legal question over which appellate courts' review is unlimited. A claim under K.S.A. 77-621(c)(4) that an agency erroneously interpreted and applied the law is reviewed de novo. Hanson v. KCC …………………………………………….…………….…..82

— Review of BOTA Rulings. The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs appellate review of rulings by the Kansas Board of Tax Appeals. In re Tax Appeal of River Rock Energy Co. ……………………...... 98

APPEAL AND ERROR:

Abatement of Filing Fees. Filing fees that exceed the reasonable costs of administering an appeal amount to an unconstitutional tax and revenue-generating meas- ure. In re Tax Appeal of River Rock Energy Co. …………………………..… 98

Constitutional Issue Deemed Waived if Not Raised before District Court— Appellate Review. Generally, a constitutional issue not raised before the district court is deemed waived or abandoned. Nevertheless, appellate courts can review issues presented on appeal where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory

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58 KAN. APP. 2d SUBJECT INDEX XI

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is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. However, even if an exception would support a decision to review a new claim, appellate courts have no obligation to do so. State v. Robison ……………………………………….……… 380

Determination whether Substantial Competent Evidence Supports District Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it. Appellate courts are expected to give deference to the fact-finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached. Strickert v. Kansas Dept. of Revenue …………………………………………. 1

Due Process Requires Substantial Compliance With Service Requirement under Rule 134(a). To satisfy the Due Process Clause of the Fourteenth Amend- ment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, substantial compliance with Supreme Court Rule 134(a) is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant is entitled to file an out-of-time appeal if the district court does not substantially comply with the service requirement set forth in Rule 134(a). State v. Maberry …………………….………………... 215

Evidence—Whether Substantial Competent Evidence Supports Dis- trict Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and they must disregard any conflicting evidence or other inferences that might be drawn from it. Johnson v. Kansas Dept. of Revenue …………….……. 431*

Invited Error May Preclude Party Challenging Ruling on Appeal. If a party invites or encourages a district court to commit error or proceed in a particular way, that party is generally precluded from challenging such ruling on appeal. Harder v. Estate of Foster ………………………………………..……….. 201*

Lack of Factual Findings by District Court—Remand of Case. Ordinar- ily, appellate courts presume the district court found all facts necessary to support its judgment. But when the record does not support such a presumption and the lack of any factual findings or explanation of the court's decision precludes meaningful appellate review, an appellate court may remand a case for further findings and conclusions. State v. Williams ………... 409*

Law of the Case Doctrine—To promote judicial efficiency, the law of the case doctrine provides that an appellate court's decision on a legal issue is binding on both the district court and the parties on remand. Harder v. Estate of Foster ……………………………………………...... 201

XII SUBJECT INDEX 58 KAN. APP. 2d

PAGE

Statutory Right to Appeal in Kansas. The right to appeal in Kansas is entirely statutory and is not contained in the United States or Kansas Con- stitutions. Normally, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by law. City of Shawnee v. Adem …………………………………………..…. 560*

Trial--Challenges to Verdict Form—Appellate Review. Appellate courts have traditionally reviewed challenges to a verdict form under the same standard as jury instructions. But a verdict form is not a jury instruction; the two serve different purposes. In general, the verdict form does not instruct the jury on the laws it will apply. Instead, the jury uses that form to record its decision on each count, claim, or question presented once that decision has been reached. State v. Williams ……………………………………….…………………. 409*

-- Jury Selection—Appellate Review. Appellate courts review a district court's decision allowing a party to use a peremptory challenge for an abuse of discretion. State v. Williams …………………………………….……………….…….. 409*

APPELLATE PROCEDURE:

Attorney Fees on Appeal—Compliance with Rule 7.07. A party seeking attorney fees on appeal must comply with Supreme Court Rule 7.07(b)(2) (2020 Kan. S. Ct. R. 50). An attorney's verification does not meet that Rule's requirement of an affidavit. In re Henson ……………………………………………..…… 167

ATTORNEY AND CLIENT:

Attorney's Response to Disciplinary Administrator Confidential Under Rule 222. Under Kansas Supreme Court Rule 222 (2020 Kan. S. Ct. R. 273), an attorney's response to the office of the Kansas Disciplinary Admin- istrator is confidential and not subject to discovery. Hernandez v. Pistotnik ………………………………………..……… 501*

ATTORNEY FEES:

Determination of Attorney Fees and Expenses by District Courts. District courts are experts in determining reasonable attorney fees and expenses using the methodology set forth in Kansas Rule of Professional Conduct 1.5(a) (2020 Kan. S. Ct. R. 297). Harder v. Estate of Foster ……………………………....….... 201

CIVIL PROCEDURE:

Certification of Class Action Lawsuit—District Court's Discretion—Appel- late Review. The district court has considerable discretion in deciding whether certification of a class-action lawsuit is appropriate. If the court considers the relevant factors listed in K.S.A. 2019 Supp. 60-223, the appellate court reviews the decision only for abuse of discretion. The district court abuses its discretion if its decision is based on legal or factual error, or if its discretion is arbitrary or unreasonable. Factual findings must be supported by substantial evidence; underlying legal issues are reviewed independently, with no required deference to the district court. Cooper Clark Foundation v. Oxy USA ……………………..…….….. 335

58 KAN. APP. 2d SUBJECT INDEX XIII

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CONSTITUTIONAL LAW:

Abusive Executive Action—Egregious Official Conduct Is Arbitrary. In cases involving abusive executive action, only the most egregious official conduct can be said to be arbitrary in the constitutional substantive due process sense. Johnson v. Kansas Dept. of Revenue …………………….. 431*

Claim of Equal Protection Violation—Determination. A party claiming an equal-protection violation has to show that he or she is similarly situated to mem- bers of a class receiving different treatment. When determining whether groups are similarly situated, a court must consider any legitimate purposes of the classification. State v. Little …………………………………………………...……... 278

Court Reviews Constitutional Claim under Appropriate Standard. If a constitutional claim is governed by a specific constitutional provision, such as the Fourth or Eighth Amendment, the court must analyze the claim under the standard appropriate to that specific provision, not under the rubric of substantive due process. Johnson v. Kansas Dept. of Revenue …….…. 431*

Driver's License Suspension Hearing—Statutes Allowing Hearing and Appeal Satisfy Due Process Concerns. The statutory provisions that allow an administrative hearing and further appeal to the district court for a trial de novo on a driver's license suspension satisfy procedural due process concerns. K.S.A. 2019 Supp. 8-1020; K.S.A. 2019 Supp. 8-259. Johnson v. Kansas Dept. of Revenue …………………………………. 431*

Due Process—Right to Be Heard. Constitutionally protected procedural due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of life, liberty, or property. Johnson v. Kansas Dept. of Revenue …………………………………. 431*

Due Process Claim—Determination of Due Process Violation. When reviewing a due process claim, courts first determine whether a protected liberty or property interest is involved. If a protected interest is implicated, the court must determine the nature and extent of the process that is due. But a due process violation exists only if the complaining party shows that he or she was denied a specific procedural protection to which he or she is entitled. State v. Lyon ………………………………………………….…. 474*

Due Process Required before Suspension of Driver's License. Suspen- sion of a person's driver's license involves state action that adjudicates important interests of the licensees. In such cases the State cannot take the license away without the procedural due process required by the Fourteenth Amendment. Johnson v. Kansas Dept. of Revenue ……………….…. 431*

Fifth Amendment Privilege against Self-incrimination. The Fifth Amend- ment to the United States Constitution operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly ex- pose the witness to a criminal charge. State v. Contreras …………….….… 255

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— Limitations. If a sentence has been imposed for a crime, or if the court has dismissed a count with prejudice, the Fifth Amendment privilege against self-incrimination ends and the witness may be compelled to testify to the facts underlying the conviction and the dismissed charge. State v. Contreras ……....… 255

Fourteenth Amendment—Equal Protection Clause. The Equal Protection Clause requires that all who are similarly situated be treated alike under the law. State v. Little ……………………………………………………...…..…….278

Fourth Amendment Application—All Governmental Action. Generally, the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants. Johnson v. Kansas Dept. of Revenue ………..…. 431*

Right against Self-Incrimination—Burden on State to Prove Statements are Voluntary. The touchstone consideration in cases involving issues of self-incrimination is voluntariness. The burden is on the State to prove—by a preponderance of the evidence—that confessions or inculpatory statements made to law enforcement officers are voluntary. State v. R.W. ……………………………….….. 135

— Constitutional and Statutory Right. The Fifth Amendment to the United States Constitution protects an individual's right against self-incrimination. This right is extended to the states through the Fourteenth Amendment. The Kansas Legislature has codified the right against self-incrimination in K.S.A. 60-460(f). State v. R.W. …………………………………………………..……..…….. 135

Right to Compel Witness to Testify—Appellate Review. The constitutional right to compel a witness to testify is subject to a harmless error analysis. State v. Contreras …………………………………………….………..….. 255

Right to Jury Trial is A Constitutional Right. The right to a jury trial is a right under both Section 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Robison …………….. 380

Substantive Due Process. Substantive due process has been described as protection from arbitrary government action. Johnson v. Kansas Dept. of Revenue ………………………………..... 431*

Substantive Due Process Limits—Determination Whether Legislation or Government Officer's Act. Substantive due process protection limits what the government may do in both its legislative and executive capacities. Criteria to identify what is fatally arbitrary differ depending on whether it is legislation or the specific act of a government officer at issue. Johnson v. Kansas Dept. of Revenue ………………………...……….. 431*

CONSUMER PROTECTION ACT:

Causal Connection Requirement Not Met by Plaintiff. The causal connection required under the KCPA between an attorney's deceptive advertising and the plaintiff's claimed injury is not shown when a plaintiff plays no part in the decision to hire that attorney, and her father who chose that attorney was unaware of the attorney's advertising. Hernandez v. Pistotnik …………………………………. 501*

58 KAN. APP. 2d SUBJECT INDEX XV

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Consumer Must Show Legal Rights Affected and Causal Connection. To be aggrieved under the KCPA, the consumer must show that the seller's act adversely affects the consumer's legal rights and must show a causal connection between the deceptive act and the claimed injury. Hernandez v. Pistotnik ……………………………………….………. 501*

Recovery for Fraudulent Misrepresentation. Under certain circumstances, a plaintiff may recover for fraudulent misrepresentation based on indirect reliance. Hernandez v. Pistotnik …………………..…………. 501*

Statutory Requirements for Plaintiff. To prevail on a Kansas Consumer Protection Act (KCPA) claim, a plaintiff must prove that (1) plaintiffs were consumers under the KCPA, (2) defendants were suppliers under the KCPA, (3) defendants engaged in a deceptive or unconscionable act or practice in violation of K.S.A. 50-626 or K.S.A. 50-627, and (4) plaintiffs were aggrieved by such act. Hernandez v. Pistotnik …………….…………. 501*

CONTRACTS:

American Rule Followed in Kansas. Kansas follows the American rule under which each party is responsible for paying its own attorney fees and expenses unless a statute or contract specifically authorizes assessment of those fees to the other party. Harder v. Estate of Foster …………………………………………… 201

Anticipatory Breach Doctrine—-Completed Breach of Contact. The doctrine of anticipatory breach requires a complete renunciation of the person's obligation under a contract before performance of the contract is due. Because an anticipatory breach requires a complete renunciation of the person's obligation under a contract, an anticipatory breach is considered a completed breach of contract under Kansas law. Hefner v. Deutschner ………………………………………………..…. 58

Employment Contract—Threatened Breach of Contract. A threatened breach of contract as stated under the parties' employment contract is something distinct from a completed breach of contract. Moreover, the phrase "threatened breach of contract" includes a broad range of acts that communicate or express an intent to violate the employment contract. Hefner v. Deutschner …………………..…. 58

— Threatened Breach Not Same as Anticipatory Breach Doctrine. In this case, the phrase "threatened breach of contract" as stated in the parties' employment contract is not equivalent to the doctrine of anticipatory breach. Hefner v. Deutschner …………………………………………………….…. 58

Employment Contract Breach—Facts in Dispute in This Case. In this case, whether the moving party threatened to breach his employment contract by obtaining a tradename and searching for future office space constituted a material fact in dispute. Hefner v. Deutschner ………………………………………….…. 58

Family Settlement Agreements Interpreted by Law of Contracts. The law of contracts governs the enforcement and interpretation of family settlement agreements. Like other contracts, the primary rule for interpreting a family settlement agreement is to ascertain the parties' intent. If the terms of the family settlement

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agreement are clear, the intent of the parties is to be determined from the language used without applying rules of construction. Schmitendorf v. Taylor …….….. 292

Interpretation---Determination of Parties' Intent. The most important rule when interpreting written contracts is to ascertain the parties' intent through the plain language of the written contract if possible. The law favors reasonable interpretations over absurd interpretations of a written contract. Hefner v. Deutschner …………………………………………………….…. 58

Waiver of Contract by Party—Question of Fact. Parties to a contract can waive a condition; waiver requires intent and knowledge. Intent may be inferred from conduct, and knowledge may be actual or constructive. Whether a party has waived a contract term is a question of fact. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………..……..….….. 306

COURTS:

American Rule—Third-Party Litigation Exception—No Jury Trial Right for Determining Attorney Fees and Expenses. Because the third-party litigation exception to the American rule is grounded in the equitable powers of the court, a party seeking to recover attorney fees and expenses under the exception does not have a right to a jury trial to determine whether it should be applied in a particular case. Harder v. Estate of Foster …………………………………….…….... 201

— Third-Party Litigation Exception an Equitable Remedy—No Jury Trial Right Under Section 5. Because the third-party litigation exception to the Amer- ican rule is an equitable remedy and is not a common law remedy recognized at the time Section 5 of the Kansas Constitution Bill of Rights was adopted, there is no right to a jury trial to determine whether the exception applies in a particular case. Harder v. Estate of Foster ………………………………………..…... 201

Discovery Controlled by District Court's Discretion—Appellate Re- view. Control of discovery is entrusted to the sound discretion of the district court, and orders concerning discovery will not be disturbed on appeal in the absence of an abuse of discretion. Hernandez v. Pistotnik …..…… 501*

Insufficiency of Evidence Challenge—Appellate Review. When a district court's decision is challenged for insufficiency of evidence or as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. In re Marriage of Davis and Garcia-Bebek ………………….……….. 494*

Kansas Judicial Review Act—Appellate Review. Whether a court has jurisdiction under the Kansas Judicial Review Act presents a question of law over which our review is unlimited. Brungardt v. Kansas Dept. of Revenue ………..…... 284

No Duty for District Courts to Inform Defendant of Time Limits for Appeal. The Due Process Clause of the Fourteenth Amendment to the United States Con- stitution and Section 18 of the Kansas Constitution Bill of Rights do not require the district court to inform a defendant of the right to appeal and the statutory time limit to appeal the denial of a motion to withdraw plea. As a result, a defendant is

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not entitled to an out-of-time appeal simply because the court failed to inform the defendant of his rights to appeal the denial of the motion. State v. Maberry …………..……………………………………………….. 215

Notice of Ruling Must Be Served on Affected Party under Rule 134. Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling. State v. Maberry ……………………. 215

Party May Waive Request for Jury Trial if Inconsistent Conduct. Even when a jury has been requested in a civil action, a party may waive the request based on conduct that is inconsistent with an intention to insist on a jury trial. Harder v. Estate of Foster ………………………………………..…..…….. 201

Review of Agency's Action under KJRA—District Court has Jurisdiction. A petitioner seeking review of an administrative agency's decision under the Kansas Judicial Review Act must set forth his or her reasons for believing relief should be granted. When a petition gives notice to the court and the parties that the petitioner is challenging the validity of the "Officer's Certification and Notice of Suspension" form, the district court has jurisdiction to consider and resolve that question. Brungardt v. Kansas Dept. of Revenue ……………….…….....….. 284

Supreme Court Precedent. This court is duty-bound to follow Kansas Supreme Court precedent unless the court has indicated it is departing from its previous position. State v. Williams ……………………………………….………….. 409*

CRIMINAL LAW:

Criminal Possession of Weapon—Definition of Knife. The folding knife in this case—which is 9 inches long when unfolded (5 1/2 inches when closed) with a 4- inch blade—is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1). State v. Lucas ………………….... 34

Custodial Interrogation—Risk of Isolation to Juvenile. Even for an adult, physical and psychological isolation during a custodial interrogation can undermine an individual's will to resist and compel a person to speak when they would not otherwise do so freely. The risk of such isolation is even more troubling when the subject of the interrogation is a juvenile. State v. R.W. ………………..…….. 135

Custodial Interrogation of Juvenile. Statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of a custodial interrogation have the potential to render a confession or inculpatory statement involuntary. State v. R.W. ……………………..……………………………..….. 135

Determination Whether Statements are Voluntary—Nonexclusive Factors. Generally, courts determine whether confessions or inculpatory statements made to law enforcement officers are voluntary by looking to the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in

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conducting the interview; and (6) the accused's fluency with the English language. State v. R.W. ……………………………………………………………….. 135

— Totality of Circumstances. Courts look at the totality of the circumstances on a case-by-case basis to determine whether impermissible coercion was present and whether that coercion overbore the defendant's free and independent will. Imper- missible coercion can be either mental or physical. State v. R.W. ………..….. 135

Direct Appeal from KORA Registration Requirements. K.S.A. 2019 Supp. 22-3602(a) allows appellate courts to hear a defendant's direct appeal from their Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et. seq., registration requirements. City of Shawnee v. Adem ………….... 560*

Dismissal with Prejudice—Bars Later Lawsuit on same Claims. A dismissal with prejudice means that the State may not seek to reinstate the action or bring any claims before any court against the same defendant arising out of the same set of facts as the dismissed count. State v. Contreras ……………….…..… 255

Driver's License Suspension—Reasonable Grounds Standard Same as Prob- able Cause Standard. Probable cause is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime. In the context of the driver's license suspension statute, the reasonable grounds standard is essentially the same as the probable cause standard. Strickert v. Kansas Dept. of Revenue …………………………………………. 1

Implied Consent Advisories—Required for Breath Test Results to Be Admitted Into Evidence before July 1, 2018. In order for breath tests obtained prior to July 1, 2018, to be admitted into evidence in a criminal trial, the person arrested was required to be notified of their statutory rights under K.S.A. 2017 Supp. 8-1001. Failure to do so requires the court to suppress the breath test results. City of Colby v. Foster …………………..……. 464*

Implied Consent Advisories Not Given—Breath Test Results Admitted Into Evidence Valid After July 1, 2018. Breath tests may be administered as a search incident to lawful arrest for drunk driving. After July 1, 2018, breath tests administered incident to an arrest can be admitted into evidence in a criminal trial regardless of whether the officer complied with the implied consent law. City of Colby v. Foster ……………………………. 464*

Kansas Sentencing Guidelines Act—Constitutional Challenge to Sentence Fails. The sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act does not violate section 5 of the Kansas Constitution Bill of Rights. State v. Albano ………… 117

Law in Effect at Time of Criminal Act. Typically, the law in effect at the time of the criminal act controls. City of Colby v. Foster …………….. 464*

Medical Expenses for Persons in Custody— Determination of Obligation to Pay Expenses. The test for determining whether a government agency has an obligation to pay a person's medical expenses is whether a person is in the agency's

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custody when the decision was made to obtain medical treatment. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ……..….… 367

— Government Agencies' Duty to Treat Persons in Custody Humanely. K.S.A. 2019 Supp. 22-4612 conveys the legislature's intent to hold government agencies liable for medical costs incurred for the treatment people receive while in their custody. This statute, in conjunction with K.S.A. 22-4613, is rooted in the principle that government agencies have a duty to treat people in their care humanely. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs …………………………………………………….…………..… 367

— Statutory Requirement Agencies Pay Expenses. K.S.A. 2019 Supp. 22-4612 requires certain government agencies to pay the medical expenses incurred by persons in their custody. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ……………………………….………………………..… 367

Negative Consequences of Out of State Criminal Acts Not in Language of Statutes. Neither the making false information statute, K.S.A. 2019 Supp. 21-5824(a), nor the fraudulent insurance act statute, K.S.A. 2019 Supp. 40-2,118(a), consider the negative consequences of a person's out-of- state criminal acts in the language of the statute. State v. Rozell …….. 570*

Person in Custody Not Always Formally Arrested—Factual Determination. A formal arrest is not always necessary to show a person is in custody. Instead, whether a person is in custody turns on the facts of each case. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs …………….…… 367

Petition for Postconviction DNA Testing. A petition for postconviction DNA testing under K.S.A. 2019 Supp. 21-2512 may be filed at any time after a defendant's conviction. State v. Williams ………….…………….. 409*

— Appellate Review. K.S.A. 2019 Supp. 21-2512 provides an avenue for individuals convicted of certain crimes, including rape, and held in state custody to petition the court that entered judgment for forensic DNA testing. A district court's summary denial of a petition for postconviction DNA testing under K.S.A. 2019 Supp. 21-2512 and a court's interpretation of that statute are questions of law over which appellate courts exercise unlimited review. State v. Williams ……….. 409*

— Statutory Requirements. Upon receiving a petition under K.S.A. 2019 Supp. 21-2512, the district court ultimately must determine whether the requested DNA testing meets the requirements of K.S.A. 2019 Supp. 21- 2512(a)(1)-(3) and whether the test will produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced. State v. Williams ………………….. 409*

Proximate Result Jurisdiction—Consideration. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person's out-of-state criminal acts within Kansas only if the statutory language of that person's charged crime considered such negative consequences. State v. Rozell ………………………………………... 570*

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— Determination. Whether proximate result jurisdiction exists to justify bringing criminal charges in Kansas hinges on whether the proximate result of a material element of a person's offense occurred in Kansas or whether the proximate result of a substantial and integral part of a person's overall continuing criminal plan occurred in Kansas. K.S.A. 2019 Supp. 21-5106(b). State v. Rozell ……...…. 570*

Request for Postconviction Discovery—Appellate Review. An appellate court reviews the district court's ruling on a request for postconviction discovery only for abuse of discretion. State v. Mundo-Parra ……………………………..…17

— Good-Cause Showing Requirement. Postconviction discovery sought by the defendant should be allowed when the defendant shows that it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. State v. Mundo-Parra …….……………………………………………....… 17

Restitution—Imposition Not a Violation of Section 5. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate Section 5 of the Kansas Consti- tution Bill of Rights. State v. Robison ………………………...………….…. 380

Sentencing—Classification of Defendant's Criminal History. When calculating a defendant's criminal history, a sentencing court considers the person's prior Kansas and out-of-state convictions and classifies each conviction as a person or nonperson offense. State v. Lyon ……………………………………….…. 474*

— Classification of Prior Conviction of Crime Committed Post-KSGA. A Kansas crime committed post-implementation of the Kansas Sentencing Guide- lines Act, K.S.A. 2019 Supp. 21-6801 et seq., is properly scored as a person offense if the crime was classified as a person offense when it was committed and when the current crime of conviction was committed even if the prior version of the earlier crime's elements are broader than the elements of the current version. State v. Lyon ……………………………………………………….……... 474*

— Classification of Prior Conviction of Crime if Statute Repealed. K.S.A. 2017 Supp. 21-6810(d)(8), which provides that "[p]rior convictions of a crime defined by a statute that has since been repealed shall be scored using the classification assigned at the time of such conviction," may apply only when classifying prior Kansas crimes committed post-implementation of the Kansas Sentencing Guidelines Act, K.S.A. 2019 Supp. 21-6801 et seq. State v. Lyon ……….…. 474*

— Classification of Prior Out of State Offense or Post-KSGA Kansas Crime. A defendant's prior Kansas crime committed post-implementation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., may be scored as a person offense for criminal history purposes even if the elements of the prior version of the offense are broader than the elements of the current version of the crime. When the statute under which the prior post-KSGA conviction was committed is still in effect, the KSGA simply points the sentencing court to that statute to determine how to designate the prior conviction. State v. Lyon ….... 474*

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— Classification of Prior Out of State Offense or Pre-KSGA Kansas Crime. For an out-of-state offense or Kansas crime committed before implementation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., to be comparable to a current offense under the Kansas criminal code, within the meaning of K.S.A. 2017 Supp. 21- 6811(e)(3) and K.S.A. 2017 Supp. 21-6810(d), the earlier crime's elements cannot be broader than the elements of the current Kansas crime that is being considered. As a result, a prior out-of-state offense or pre-KSGA crime must have elements identical to or narrower than a current Kansas person crime to be scored as a person offense for criminal history purposes. State v. Lyon ……………………………………………………….…..…. 474*

— Multiple Sentences Imposed Same Day—Judge's Discretion. When multiple sentences in different cases are imposed on the same day, a judge has the discretion to impose concurrent or consecutive sentences regardless of the mandatory provisions of K.S.A. 2019 Supp. 21-6606(c), (d), and (e). State v. Dunham ……………………………………………....……… 519*

— Probation—Statutory Protections Satisfy Due Process Requirements. Alt- hough a district court's decision to impose probation is an act of grace subject to judicial discretion, once granted probation, the probationer acquires a conditional liberty interest subject to substantive and procedural due process limits on its revocation. The protections contained in K.S.A. 2018 Supp. 22-3716 satisfy all constitutional due process requirements necessary in probation revocation proceedings. State v. Lyon ……………………………………………….……….. 474*

— Restitution—Imposition Not Violation of Sixth Amendment. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21- 6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate the Sixth Amendment to the United States Constitution. State v. Robison …………….. 380

— — Insurance Carrier May Be Awarded Restitution under Statutes. Nei- ther K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant's crime. State v. Robison ………………………………………………………...….. 380

— — Purpose. Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage. Although part of the criminal sentence, restitution is intended to fairly compensate the victims of crime who actually suffered an injury or damage rather than the government. State v. Robison ……………………………………………………..…..…. 380

— — Statutory Authority for Imposition by District Court. Neither K.S.A. 2017 Stupp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) impose a mandatory minimum amount or a mandatory maximum amount that a convicted defendant must pay to reimburse a victim of crime. Both statutes base the maximum amount of restitution on the actual damage or loss suffered by the victim as a result

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of the defendant's crime. Likewise, both statutes grant the district court the authority to order a lesser amount than the actual amount suffered by the victim if compelling circumstances show a restitution plan to be unworkable. State v. Robison ………………………………………………………...…. 380

— Restitution Ordered as Part of Sentence or Condition of Probation. K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order a convicted defendant to pay restitution as part of the sentence. Similarly, K.S.A. 2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a condition of probation. Both statutes provide that the restitution amount must include the victim's damage or loss caused by the defendant's crime, unless the district court finds compelling circumstances that would render a plan of restitution to be unworkable. State v. Robison ………………………………..….……. 380

Sentencing Defendant for New Felony While on Bond. A district court sentencing a defendant for a new felony committed while on felony bond under K.S.A. 2019 Supp. 21-6606(d) may impose a nonprison sanction or a prison sanction, even though the new crime of conviction otherwise presumes a nonprison sentence. If a prison sentence is imposed, that sentence must be consecutive unless the defendant shows manifest injustice. State v. Vaughn …………………………………………………...….. 585*

Sentencing for Sexually Violent Crimes—Lifetime Supervision. Those convicted of sexually violent crimes are subject to lifetime supervision on release from prison because of the high risk of recidivism for that class of offenders. In light of the purpose of the lifetime-supervision requirement, those offenders are not similarly situated to those convicted of other serious, but not sexually violent, crimes when considering whether imposing lifetime supervision on sexually violent offenders violates equal protection. State v. Little ……………………...... …….278

Trial—Joinder or Consolidation Issues—Three-Step Analysis—Appel- late Review. In analyzing joinder or consolidation issues, the district court and appellate courts use a three-step analysis with the following standards of review: On the first step, the court determines whether K.S.A. 22-3202 permits joinder. Under that statute, multiple complaints against a defendant may be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of multiple crimes in a single complaint: (1) the charges must be of the "same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Whether one of these conditions is satisfied is a fact-specific inquiry, and the appellate court will review the district court's factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. On the second step, because K.S.A. 22-3202(1) provides that charges may be joined, a district court retains discretion to deny a joinder request even if a statutory condition is met. We review this decision for an abuse of discretion. On the third step, if an error occurred in the preceding steps, courts determine whether the error resulted in prejudice, i.e., whether the error affected a party's substantial rights. On appeal from a

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denial of a motion to sever, the party benefitting from the error is responsible for demonstrating there is no reasonable probability the error affected the trial's outcome considering the entire record. State v. Brown ……. 599*

Validity of Confession or Statement of Juvenile—Considerations. When the accused is a juvenile, courts must exercise the greatest care and heightened sensi- tivity in assessing the validity of a confession or inculpatory statement made to law enforcement officers. In cases involving the custodial interrogation of juveniles and if legal counsel is not present, courts not only must make sure that a confession or inculpatory statement was not coerced but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair. State v. R.W. …………….……………………….…………………….. 135

Voluntariness of Juvenile's Confession—Factors. In assessing the voluntariness of a juvenile's confession or inculpatory statements, courts are to consider five additional nonexclusive factors: (1) the juvenile's age; (2) the length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with law enforcement officers; and (5) the juvenile's mental state. State v. R.W. ………………………………………………….….. 135

DIVORCE:

Division of Property. The division of property in a divorce must be equitable but need not be equal. In re Marriage of Perales ………………… 26

— Appellate Review. An appellate court reviews the division of property in a divorce for abuse of discretion, so the award may be reversed only if it depends on an error of fact or law or if no reasonable person would agree with it. In re Marriage of Perales …………………………….……….… 26

— No Abuse of Discretion in this Case. On the facts of this case, the district court did not abuse its discretion in awarding virtually all of the marital property to one spouse. In re Marriage of Perales ………..………….… 26

EQUITY:

No Right to Jury Trial in Suit in Equity. A party is not entitled to a jury trial as a matter of right in a suit in equity. In determining whether an action is one in equity, the test is whether the essential nature of the claim is grounded on equitable principles and is one in which equitable relief is sought. Harder v. Estate of Foster ………………………...………..…. 201

ESTATES:

Family Settlement Agreement—Statutory Definition. As authorized by K.S.A. 59-102(8), a family settlement agreement is "a written and acknowledged instrument which affects the administration or distribution of [an] estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement, all of whom must be competent or authorized to enter into such agreement." Schmitendorf v. Taylor ……………………………………………….... 292

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Family Settlement Agreements—Resolves Legal Disputes. Kansas law favors the settlement of legal disputes. When parties enter into a family settlement agreement resolving a dispute relating to the administration or distribution of an estate, neither party is permitted to repudiate the settlement absent bad faith or fraud. Hindsight, buyer's remorse, or other after-the-fact impulses cannot invalidate a family settlement agreement. Schmitendorf v. Taylor …….……….…….. 292

ESTOPPEL:

Equitable Estoppel—Three Factors. Equitable estoppel is a judicial remedy in which a party is prevented from taking a position inconsistent with one it previously took. A party invoking equitable estoppel must prove three things: (1) a party's acts, representations, or silence when it had a duty to speak caused the invoking party to believe that certain facts existed; (2) that the invoking party reasonably relied and acted on that belief; and (3) that the reliance was detrimental to the invoking party. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………..…..….. 306

EVIDENCE:

Admissibility of Prior Crimes Evidence—Three-Part Test—Appellate Review. In analyzing the admissibility of K.S.A. 60-455 evidence, the district court uses a three-part test while appellate courts use the following standards of review: First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. Third, if the fact to be proven is material and the evidence is relevant to prove a disputed material fact, the district court must determine whether the risk of undue a prejudice to the defendant substantially outweighs the probative value of the evidence. The appellate court reviews this determination for abuse of discretion. State v. Brown ……………………….………. 599*

Admission of Prior Crimes Evidence—Three Types of Resulting Prej- udice. There are at least three types of prejudice resulting from the admission of prior crimes evidence: First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he or she committed this one. Second, the jury might conclude that the defendant deserves punishment because he or she is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Third, the jury might conclude that because the defendant is a criminal, the evidence put in on his or her behalf should not be believed. State v. Brown ………………………………………………………... 599*

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Contemporaneous Objection Rule Not Applicable to Witness' Asser- tion of Fifth Amendment privilege. K.S.A. 60-404, which requires a contemporaneous objection to the admission of evidence, does not apply to the question of law whether a witness has a right to assert the Fifth Amendment privilege against self-incrimination. State v. Contreras ………………………………………………..…... 255

Doctrine of Acquiescence—Limited Application. A district court's Fifth Amendment ruling is not a judgment to which the doctrine of acquiescence applies. That doctrine has limited application in criminal cases. State v. Contreras ……………………………………………….……. 255

Erroneous Admission of Prior Crimes Evidence—Burden on Benefit- ting Party. Where an error in the admission of K.S.A. 60-455 evidence occurs, the party benefitting from the error must persuade the court that there is no reasonable probability that the error affected the trial's outcome in light of the entire record for it to be deemed harmless. State v. Brown …….. 599*

— Harmless Error Standard—Appellate Review. The erroneous admission of K.S.A. 60-455 evidence is subject to review for harmless error under K.S.A. 2019 Supp. 60-261. Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is grounds for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. State v. Brown …………………………………….…. 599*

Prejudicial Effect of Other Crimes Evidence—Considerations. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct. State v. Brown ………………………………………….…… 599*

Prior Crimes Evidence—Purpose. K.S.A. 2019 Supp. 60-455(a) and (b) allow the State to admit prior crimes evidence for the purposes of showing some material fact including, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. But this is not an exclusive list. Evidence of a defendant's prior crimes may be admitted to show why a victim delayed reporting a defendant's sexual abuse. State v. Brown …………………………………………………….….. 599*

Probative Value of Other Crimes Evidence—Considerations. In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. State v. Brown ….... 599*

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GARNISHMENTS:

Burden on Judgment Debtor to Prove Exemption. The judgment debtor has the burden to show some or all of the subject property is exempt from garnishment. Stormont-Vail Healthcare v. Sievers …………...……………. 152

Nonwage Garnishment. K.S.A. 61-3505 controls nonwage garnishments. Stormont-Vail Healthcare v. Sievers ………………………………….……. 152

Wages Not Identified as Earnings under Statute. Once wages are deposited into a bank account, they lose their identity as "earnings" as defined under K.S.A. 2019 Supp. 60-2310(a)(1). Stormont-Vail Healthcare v. Sievers ……………………………….………. 152

JUDGMENTS:

Motion to Set Aside Judgment—Statutory Requirement to Timely File. A K.S.A. 60-260(b) motion must generally be filed "within a reasonable time." But a void judgment may be set aside at any time. In re Henson …………………………………………………………... 167

Void Judgment Lacks Validity. A party's voluntary payments under a void judgment do not amount to acquiescence under the law because a void judgment has no legal force or validity. In re Henson ……………………... 167

— In re Henson ………………………………………………………... 167

JURISDICTION:

Child Support Orders—Modifications Prohibited under FFCCSOA. Un- der the Full Faith in Credit for Child Support Orders Act, modifications are prohibited unless the exceptions are satisfied. In re Henson ……………….… 167

Continuing Jurisdiction in Issuing State unless Written Consent. The issuing state retains continuing, exclusive jurisdiction to modify child support orders as long as one of the parties to the order continues to reside in the initiating state, unless all parties file written consent to jurisdiction in another state. In re Henson ……………………………………………… 167

Enforcement of Child Support Orders from Another State. The Full Faith in Credit for Child Support Orders Act establishes a general rule requiring a state to enforce the child support order of another state. See 28 U.S.C. § 1738B(a)(1). It further prohibits a state from modifying another state's child support order if the issuing state has "continuing, exclusive jurisdiction" over the matter. In re Henson ……………………………..… 167

Implied Consent Advisory—Officer's Failure to Give Advisory Does Not Deprive Court of Jurisdiction. Failure of the arresting officer's DC- 27 submission to comply with K.S.A. 2019 Supp. 8-1002(a) does not deprive the KDOR or the courts of subject matter jurisdiction over the driver's license suspension action. Sandate v. Kansas Dept. of Revenue ….…. 450*

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Lack of Subject Matter Jurisdiction—Void Order. An order made by a court that lacks subject matter jurisdiction is a void order. In re Henson ……………………………………………………………... 167

Modification of Child Support Orders—Preemption of State Law. The Full Faith in Credit for Child Support Orders Act preempts state law with respect to the modification of child support orders in a Uniform Reciprocal Enforcement of Support Act enforcement action. In re Henson ………… 167

Question of Law—Appellate Review. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. City of Shawnee v. Adem …………………………………………..…. 560*

Subject Matter Jurisdiction—Appellate Review. Whether the district court had subject-matter jurisdiction to hear the case is a question of law appellate courts review de novo. Chalmers v. Burrough ………………………..………….. 531*

— Vested by Statute and Constitution. Subject matter jurisdiction is vested by both statute and the Kansas Constitution and establishes the court's authority to decide a particular type of action. Sandate v. Kansas Dept. of Revenue …………………………...…….. 450*

Subject Matter Jurisdiction Issue. Subject matter jurisdiction may be raised at any time, even for the first time on appeal. In re Henson …...… 167

Subject Matter Jurisdiction May Be Raised Sua Sponte. Questions of subject-matter jurisdiction may be raised at any time, including by the court sua sponte. Unlike personal jurisdiction, which concerns the court's authority over the parties and may therefore be waived, subject-matter jurisdiction goes to the power of a court to hear and decide a case. Parties cannot bestow the power to hear a case on a court when that authority does not otherwise exist, so subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. Chalmers v. Burrough ……………………………..……….. 531*

KANSAS CONSTITUTION:

Right to Jury Trial under Section 5. Section 5 of the Kansas Constitution Bill of Rights preserves the common law right to a jury trial as it existed at the time of its adoption. Harder v. Estate of Foster ………………..….. 201

No Jury Trial Right under Section 5 for Determination of Attorney Fees or Expenses. At common law, there was no right to recover attorney fees and expenses in a civil action. As a result, Section 5 of the Kansas Constitution Bill of Rights does not guarantee the right to a jury trial to determine whether attorney fees and expenses should be awarded or to determine a reasonable amount of attorney fees to be awarded. Harder v. Estate of Foster ……………………………………...…..….. 201

KANSAS CORPORATION COMMISSION:

Broad Authority under Statutes. K.S.A. 66-1,205(a) defines the circumstances under which the Kansas Corporation Commission may review a

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complaint involving a natural gas public utility's rates, rules, regulations, practices, or acts. The text of K.S.A. 66-1,205(a) does not limit the Com- mission's regulatory authority to a rate-reviewing function. Instead, it provides the Commission broad authority to determine whether any rule and regulation, practice, or act whatsoever is in any respect unreasonable, unfair, or unjust. Hanson v. KCC ………………………………………..… 82

Statutory Authority to Investigate Remedies for Best Interest of Public. K.S.A. 66-1,206 vests the Kansas Corporation Commission with authority to craft a remedy when a natural gas public utility's rates or practices are found to be unreasonable, unjust, or unfair. This allows the Commission to investigate potential courses of action—whether some form of refund, rate adjustment, penalty, or other remedy—and determine which is in the best interest of the complainants and the public. Hanson v. KCC ………….... 82

Statutory Authority to KCC to Supervise Natural Gas Public Utilities. Kansas law gives the Kansas Corporation Commission full power, authority, and jurisdiction to supervise and control natural gas public utilities in this state, empowering the Commission to do all things necessary to carry out this responsibility. Hanson v. KCC …………………………………. 82

Statutory Charge to Review Rates and Oversee Utilities' Practices— Liberal Construction. Kansas statutes direct the Kansas Corporation Com- mission not merely to review the rates charged by natural gas public utilities in this state, but also to oversee the utilities' practices to ensure they are not in any respect unreasonable, unjust, or unfair. If the Commission finds any practice deficient, it may correct the utility's error as it determines to be just, the Commission can carry out its statutory charge. Hanson v. KCC ……. 82

KANSAS OFFENDER REGISTRATION ACT:

Application to Municipal Court Convictions—Appellate Review. Whether KORA applies to municipal court convictions involves statutory interpretation, which is a question of law subject to unlimited review. City of Shawnee v. Adem ……………………………………..…………... 560*

Crime of Sexual Battery under Shawnee Municipal Code and State Statute Comparable. The crime of sexual battery under the Uniform Public Offense Code adopted by the City of Shawnee is identical to K.S.A. 2019 Supp. 21-5505(a) and is therefore comparable. City of Shawnee v. Adem ……………………...…. 560*

KORA Independent Section of Kansas Law. Despite its location in Chapter 22 of Kansas Statutes Annotated, the KCCP, KORA is an independent and self-contained section of Kansas law and not a part of the KCCP. City of Shawnee v. Adem ………………………………………..………... 560*

KORA Is Civil and Nonpunitve—Application. KORA is a regulatory scheme that is civil and nonpunitive for all classes of offenders. City of Shawnee v. Adem …………………..…………………………..…. 560*

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KORA Not Subset of KCCP. There is no incorporating language in either the Kansas Code of Criminal Procedure (KCCP) or the KORA which indicates legislative intent to treat KORA as a subset of the KCCP. City of Shawnee v. Adem ……………………………………………….…. 560*

Sex Offender Definition. K.S.A. 2019 Supp. 22-4902(b)(7) defines "sex offender" as "any person who . . . has been convicted of an offense that is comparable to any crime defined in this subsection," which includes sexual battery as defined in K.S.A. 2019 Supp. 21-5505(a). City of Shawnee v. Adem …………………………………………..…. 560*

Registration requirement under KORA applies to municipal court conviction..A municipal court judge is required to impose the registration requirement prescribed by KORA on a defendant convicted of sexual battery under the Uniform Public Offense Code. The same is true for a district court hearing an appeal from a municipal court on such a charge. KORA itself imposes the duty to register on the offender, rather than the court's order. City of Shawnee v. Adem …………………………………………..…. 560*

MOTOR VEHICLES:

Driver's License Suspension—Electronic Signature Equivalent to Manual Signature. "Signing" a document can encompass more than the physical act of manually writing a person's name. Instead, a signature is an indication by any dis- tinctive mark—including a previously created image of an electronic signature— for the purpose of communicating and recording a person's authorization, certification, agreement, or identity. "Signing" is merely the act of affixing that signature. Brungardt v. Kansas Dept. of Revenue ………………...……………….….. 284

— Factors for Proper Suspension. Suspension of a driver's license is proper if (1) the law enforcement officer had reasonable grounds to believe the driver operated a vehicle while under the influence of alcohol, (2) the driver was arrested for an alcohol-related offense and there was probable cause to effectuate that arrest, (3) the driver was presented with the required oral and written notices, and (4) the driver refused to submit to the requested breath test. Strickert v. Kansas Dept. of Revenue …………………………...…………….. 1

— Required Legal Notices. The "Officer's Certification and Notice of Sus- pension"—commonly called the DC-27 form—memorializes that the officer provided the driver all required legal notices under K.S.A. 2019 Supp. 8-1001. In signing that form, an officer certifies the requirements of K.S.A. 2019 Supp. 8-1002(a) have been fulfilled. If these notice and certification requirements are not met, the Division of Motor Vehicles must dismiss the administrative proceeding and return any suspended license. Brungardt v. Kansas Dept. of Revenue ………………………….….….. 284

— Requirement of DC-27 Form Certification. K.S.A. 2019 Supp. 8- 1002(b) indicates that an officer's certification of a DC-27 form "shall be complete upon signing, and no additional acts of oath, affirmation, ac- knowledgment or proof of execution shall be required." This language was enacted to avoid an argument that additional foundational requirements

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were necessary before the Division of Vehicles could suspend a licensee's driving privileges. Brungardt v. Kansas Dept. of Revenue …………….. 284

Driving under Influence—Out of State Conviction May Be Used to Enhance DUI Charge. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 Supp. 8-1567 from a misdemeanor to a felony or to increase the punishment of a recidivist, even though the other state's statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). State v. Mejia …….. 229

Implied Consent Advisory—Statutory Language "Requires" Not Coercive. The choice of the word "requires" in K.S.A. 2016 Supp. 8-1001(k)(1) is not unduly coercive. When the implied consent advisory is read in context, a reasonable person would understand that he or she retains the right to refuse testing. Fisher v. Kansas Dept. of Revenue …………………………………….….. 421*

OIL AND GAS:

Determination of Fair Market Value. Substituting the minimum lease value for the working interest subtotal restricts full consideration of two factors under K.S.A. 79-331(a)—the cost of operation and the character of the market. In re Tax Appeal of River Rock Energy Co. ……………….. 98

Determination of Fair Market Value of Oil and Gas Wells and Leases. The requirement to use the greater of the minimum lease value or the working interest subtotal (actual gross working interest value) strips the appraiser of the ability to reconcile the two values to determine a reasonable fair market value of the property. In re Tax Appeal of River Rock Energy Co. …………………………….. 98

Fair Market Value of Oil and Gas Wells and Leases. Statutorily, oil and gas wells and leases are appraised in accordance with K.S.A. 79-331(a) and K.S.A. 79-503a in order to reach the actual fair market value in the market- place as opposed to a fictional, unrealistic, or arbitrary determination. In re Tax Appeal of River Rock Energy Co. ……………………………. 98

Gas Lease—Marketable-Condition Rule. When the parties have agreed that the gas at issue will be sold in the interstate market, that some of the gas produced from the same well could be used at the wellhead or at a farmhouse does not make the gas at issue marketable under the marketable-condition rule. Cooper Clark Foundation v. Oxy USA ………………………………….…. 335

Gas Leases—Concept of Marketable-Condition Rule. The concept of marketability is tied to the market for the gas. When the parties have agreed that the gas will be sold in the interstate market, the gas company cannot deduct expenses required to make the gas marketable for the interstate market. Cooper Clark Foundation v. Oxy USA ……………..………..……. 335

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— Implied Duty on Company to Market All Gas Produced. Under Kan- sas law, all gas leases impose an implied duty on the gas company (the les- see) to market any gas produced from the well. Unless disclaimed by express language, that means the gas company must market its product at reasonable terms within a reasonable time following production. Cooper Clark Foundation v. Oxy USA ……………………….…..…… 335

— Marketable-Condition Rule—Application. A corollary of the gas company's duty to market the gas is the marketable-condition rule. Under that rule, the gas company must make the gas marketable at its own expense, which means that expenses required to make the gas marketable cannot be deducted from royalty payments. Once the gas is in marketable condition, expenses may be deducted from royalty payments. Cooper Clark Foundation v. Oxy USA ……………………….……..…. 335

Modification of Lease—Factual Question. Parties to an oil-and-gas lease can modify the terms of their agreement. Whether they have mutually agreed to do so is a factual question. Their agreement may be express or implied from their conduct. Thoroughbred Assoc. v. Kansas City Royalty Co. …………………..…. 306

Production under Unitized Gas Leases—Royalties. Under Skelly Oil Co. v. Savage, 202 Kan. 239, 447 P.2d 395 (1968), when parties operating under unitized gas leases incidentally produce other liquid hydrocarbons from a gas well, the gas lease may entitle them to royalties from the production of the non-gas hydrocarbons. But when the production of other hydrocarbons is not incidental to the gas production, the proceeds from it are not covered by the gas lease. Thoroughbred Assoc. v. Kansas City Royalty Co. …... 306

Sit to Recover Interest on Oil and Gas Payments—Award of Attorney Fees and Costs. K.S.A. 55-1617 provides that a prevailing party in a case to recover interest on certain oil-and-gas payments "may recover court costs and reasonable attorney fees at the discretion of the court." Under that provision, the award of costs and attorney fees is a discretionary call for the district court, not a mandated award. Thoroughbred Assoc. v. Kansas City Royalty Co. ………………..……. 306

PARENT AND CHILD:

Determination of Parenting Time—Statutory Factors. K.S.A. 2019 Supp. 23- 3203(a) sets out a nonexclusive list of factors a district court can use to determine issues of parenting time. In re Marriage of Davis and Garcia-Bebek …….... 494*

District Court's Decision of Parenting Time—Appellate Review. Given a district court's unique vantage point of what is often an emotionally charged situation, Kansas appellate courts generally do not overturn parenting time decisions unless the district court abused its discretion. In re Marriage of Davis and Garcia-Bebek ……………………………….. 494*

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Insufficiency of Evidence Challenge—Appellate Review. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal. In re Marriage of Davis and Garcia-Bebek ……………………….….. 494*

Parenting Time Denied in This Case—No Abuse of Discretion. Under the facts of this case, it was not an abuse of discretion for the district court to deny the father parenting time in Peru. In re Marriage of Davis and Garcia-Bebek ………………….……….. 494*

Reasonable Parenting Time under Statute. K.S.A. 2019 Supp. 23- 3208(a) states: "A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health." In re Marriage of Davis and Garcia-Bebek ………………………….. 494*

Statutes Guide Determination of Custody by District Court—The provisions of K.S.A. 2019 Supp. 23-3201 et seq. guide the district court's discretionary determination of a child's custody, residency, visitation, and parenting time. In re Marriage of Davis and Garcia-Bebek …………….. 494*

PERSONAL PROPERTY:

Appraisal of Personal Property—Fair Market Value. K.S.A. 79-501 requires personal property to be appraised at its fair market value in money. In re Tax Appeal of River Rock Energy Co. …………………………….. 98

POLICE AND SHERIFFS:

Implied Consent Advisory—Substantial Compliance by Officer. An officer substantially complies with K.S.A. 2016 Supp. 8-1001(k) when the officer reads an implied consent advisory to the driver that omits the items listed in subsections (k)(2) ("the opportunity to consent to or refuse a test is not a constitutional right") and (k)(4) (if the driver refuses the test, the officer may charge the driver with a separate crime for refusal). Fisher v. Kansas Dept. of Revenue ………………………………..…. 421*

— Sandate v. Kansas Dept. of Revenue …………………………..…. 450*

— Substantial Compliance with Statute. Regardless of advising drivers that they are required to take a test of breath, blood, or urine if requested by police, K.S.A. 2016 Supp. 8-1001(k) makes it clear that testing under the implied consent laws is voluntary. Accordingly, providing the advisory as set out in K.S.A. 2016 Supp. 8-1001(k)(1) substantially complies with the implied consent statutory scheme. Sandate v. Kansas Dept. of Revenue …………………………….. 450*

Law Enforcement Officer Has Statutory Duty to Arrest For Felonious Traffic Offenses. Under K.S.A. 8-2104(d), when a person is stopped by law enforcement for felonious traffic offenses, law enforcement has a legal duty to arrest the offender—to take the offender into custody and bring him or her before a judge. The officer conducting the stop has no discretion

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whether to take the offender into custody. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ………………………..…………….. 367

SEARCH AND SEIZURE:

Breath Test Considered a Search Under Fourth Amendment. A breath test is considered a search for Fourth Amendment purposes. . Johnson v. Kansas Dept. of Revenue …………………………….…….431*

Exclusionary Rule—Driver's License Proceedings. A driver may raise Fourth Amendment claims in the administrative driver's license hearing, but such claims do not trigger the exclusion of resultant evidence. Johnson v. Kansas Dept. of Revenue …………………………………..431*

— No Application to Driver's License Proceedings. The exclusionary rule—which prohibits the admission of evidence at trial that officers or other governmental officials obtained through an unlawful search under the Fourth Amendment of the United States Constitution—does not apply in civil administrative driver's license proceedings. Johnson v. Kansas Dept. of Revenue …………………………………..431*

Traffic Stop—Reasonable Suspicion Requirement. A routine traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Consti- tution; therefore, to comply with its strictures, the officer conducting the stop must have a reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. Courts evaluate the existence of a reasonable suspicion under a totality of the circumstances analysis that requires a case-by- case assessment. Strickert v. Kansas Dept. of Revenue ………………………... 1

— Scope and Duration of Stop. A traffic infraction provides police with the reasonable suspicion necessary to initiate a traffic stop. The scope and duration of a stop must be strictly tied to and justified by the circumstances that rendered it proper and must last no longer than is necessary to effectuate the purpose of the stop. To extend a traffic stop beyond the time necessary to address the traffic violation, an officer must have a reasonable suspicion to believe that the person was or is involved in additional criminal activity. Reasonable suspicion requires more than just a hunch; the officer must be able to state a particularized and objective basis for believing the person stopped is engaged in criminal activity. Strickert v. Kansas Dept. of Revenue …………………………..………...….... 1

Warrantless Search—Fourth Amendment Analysis. Whether a warrantless search is in a manner consistent with an exception to the warrant requirement necessarily depends on a Fourth Amendment analysis. Accord- ingly, we do not analyze it under the substantive due process rubric. Johnson v. Kansas Dept. of Revenue …………………………………. 431*

SEXUALLY VIOLENT PREDATOR ACT:

Two Day Time Limit for Hearing Is Directory. The requirement in K.S.A. 2019 Supp. 59-29a08(k), that the court set a hearing within two working days of receipt of notice that a person in the Sexually Violent Predator Treatment Program has

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been returned from transitional release to the secure commitment facility, is directory, not mandatory. In re Care and Treatment of Ritchie …………….………189

STATUTES:

If Legitimate and Substantial State Interest—No Violation of Due Pro- cess Clause. If a statute is necessary for the effectuation of a legitimate and substantial state interest, and not applied in an arbitrary or capricious manner, it does not violate the Due Process Clause. Johnson v. Kansas Dept. of Revenue …………………………………. 431*

SUMMARY JUDGMENT:

Review of Summary Judgment Motion by District Court—Standards. A party seeking summary judgment must show that there are no disputed issues of material fact and that judgment may therefore be entered as a matter of law—essentially, that there is nothing the fact-finder could decide that would change the outcome. The district court's task does not change simply because all parties have filed summary-judgment motions on stipulated facts. Each motion must be separately and independently reviewed under these summary-judgment standards. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ………………….…..…...…. 367

STATUTES:

Conflicting Language with Other Statutes—Context to Give Meaning. Even when the language of a statute is clear, an ambiguity can arise when the language conflicts with other statutes. In these situations, text alone is only the beginning. Context is necessary to give a more precise meaning. State v. Dunham ……………………………………………………… 519*

Conflicting Statutes—Court's Duty to Reconcile for Consistency. When faced with statutes that appear to conflict, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Dunham …………….…… 519*

Construction—Legislative Intent. When a statute is plain and unambiguous, this court need not speculate about the legislative intent behind that clear language and will refrain from reading something into the statute that is not readily found in its words. Stormont-Vail Healthcare v. Sievers ………………………..………. 152

Construction of Tax Statutes—Taxpayer's Favor. As a general rule, when construing tax statutes, provisions which impose a tax are to be construed strictly in favor of the taxpayer. In re Tax Appeal of River Rock Energy Co. …………… 98

Interpretation—Appellate Review. The interpretation of a statute is a question of law over which this court has unlimited review. Stormont-Vail Healthcare v. Sievers ……………………………...…..……. 152

— Determination of Legislative Intent—Appellate Review. Statutory interpretation is a legal question over which appellate courts exercise unlimited review. The aim of statutory interpretation is to determine the legislature's intent based on the language it employed. When a statute's text is plain and unambiguous, courts

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apply that language as written and do not look to canons of construction or legislative history. Courts give common words their common meanings and neither add language to statutes nor delete statutory requirements. State v. Lucas ….… 34

— Legislative Intent. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of a statute. Courts therefore do not add or ignore statutory text, and courts give ordinary words their ordinary meanings. Hanson v. KCC …………………………………….…… 82

Statutory Definition of Fair Market Value. K.S.A. 79-503a defines fair market value as the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue com- pulsion. In re Tax Appeal of River Rock Energy Co. ……………………….… 98

SUMMARY JUDGMENT:

Appropriate if No Material Facts in Dispute. An order of summary judgment is appropriate only when no material facts are in dispute. When determining the existence of material facts in dispute, a trial court must resolve all facts and inferences in the nonmoving party's favor. Hefner v. Deutschner …………………. 58

Grant of Summary Judgment—Application. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Schmitendorf v. Taylor ……………………………………………...…..….. 292

Summary Judgment Ruling—Appellate Review. In an appeal from a district court's ruling on a summary judgment motion, appellate courts consider the motion de novo and apply the standards set forth in K.S.A. 2019 Supp. 60-256(c)(2). Schmitendorf v. Taylor …………………………………….……..……..….. 292

TORTS:

American Rule—Application of Third-Party Litigation Exception. In the exercise of their equitable powers, courts have recognized a limited number of exceptions to the American rule. Kansas recognizes the third-party litigation exception to the American rule to protect those who are drawn into litigation due to the wrongful conduct of third parties. Harder v. Estate of Foster ……………….. 201

— — Factors. The factors required to be shown to recover attorney fees and expenses under the third-party litigation exception to the American rule were set forth in Harder v. Foster, 54 Kan. App. 2d 444, 401 P.3d 1032 (2017). Harder v. Estate of Foster ………………………………………….…..…... 201

TRIAL:

Challenged Jury Instruction in This Case Legally Correct. The district court does not undermine the jury's power of nullification by instructing the jury that it "must" follow the law and that it is the jury's "duty" to do so. State v. Albano ………………………….…………..…….……………..…. 117

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Defendant's Right to Fair Trial—Right to Call Witnesses Not Absolute. A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial. A defendant's right to call and examine witnesses, however, is not absolute and on occasion will be overridden by other legitimate interests in the criminal trial process. State v. Contreras ……….………..… 255

Determining Jury Instruction Error—Appellate Review. An appellate court employs a multi-step process to review claims of jury instruction error. First, the court must decide whether the issue was preserved. Second, it must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. Finally, if error is found, the court must then determine whether the error is reversible. State v. Albano ………………………….………………. 117

Jury Selection—Purpose of Peremptory Challenge. The purpose of a peremptory challenge is to remove prospective jurors who, though not subject to challenge for cause, are believed to be inclined against a party's interests. Courts generally give parties wide latitude in exercising peremptory challenges as long as their reason for doing so is nondiscriminatory. State v. Williams ……………………..………. 409*

— Statutory Requirement for Peremptory Challenge. K.S.A. 22-3411a does not limit when a party may use a peremptory challenge. Instead, the statute indicates a district court may not require a party to use any peremptory challenges until a jury is passed for cause. But nothing in the statute prohibits a party from using a peremptory challenge earlier if the party chooses to do so. State v. Williams ……………………………………………………...……. 409*

— Voir Dire Answers Not Evidence. Jurors are not witnesses. Answers to questions during voir dire are not evidence. State v. Williams ………. 409*

Limiting Instruction for K.S.A. 60-455 Evidence. If K.S.A. 60-455 evidence is admitted at trial, then a limiting instruction is generally required. But the district court's failure to give a limiting instruction concerning K.S.A. 60-455 evidence is not always reversible error. Under the facts and circumstances of this case, the district court's failure to give a limiting instruction concerning the admissibility of the defendant's prior drug convictions was not clearly erroneous. State v. Albano ……………………………………………………….……. 117

UNIFORM INTERSTATE FAMILY SUPPORT ACT:

Affirmative Defenses Apply to Validity of Order. UIFSA's limitations on affirmative defenses only apply when someone is contesting the validity or enforcement of a registered order. Those limitations do not apply when someone is challenging the effectiveness of the underlying registration. Chalmers v. Burrough ………………………………………………... 531*

Exclusive Jurisdiction to Establish and Modify Child Support—Require- ments for Enforcement. UIFSA adopts the principle of continuing, exclusive jurisdiction to establish and modify child support. Under this framework, Kansas courts may enforce out-of-state orders concerning child support at any time, as

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long as they have personal jurisdiction over the parties and the out-of-state order is properly registered according to the procedures set forth in the Act. But a Kansas court does not have jurisdiction to establish or modify child-support obligations in a case originally filed in another state unless continuing, exclusive jurisdiction over that case is first transferred to Kansas. Chalmers v. Burrough ………...... …. 531*

Procedural Requirements to Register Out of State Order. Under UIFSA's procedural requirements, a Kansas court has no authority to modify child-support obligations in an out-of-state case until the out-of-state order is properly registered under K.S.A. 2019 Supp. 23-36,602. Until then, the original, issuing court has continuing, exclusive jurisdiction over the case. Thus, proper registration of an out-of- state order of child support is a jurisdictional prerequisite that must be satisfied before a Kansas court can take any action on that order. Chalmers v. Burrough …………………………………………..…..……. 531*

Purpose of UIFSA—Only One Valid Support Order Effective At One Time. UIFSA was adopted to prevent the issuance of multiple support orders by different jurisdictions as families move between and interact with different states. To prevent the issuance of overlapping or conflicting orders, UIFSA establishes a one- order system whereby all states that have adopted UIFSA recognize and enforce the same obligation consistently. The goal of this uniform structure is to ensure that only one valid support order may be effective at one time. Chalmers v. Burrough …………..……………………………………..…. 531*

Registration Requirements—Out of State Order Must Be Attached to Peti- tion. The controlling out-of-state order is the focus of a modification or enforcement proceeding under UIFSA. Without a copy of that order, the district court cannot know its contours. A party who fails to attach the out-of-state order to his or her petition to register that order has not substantially complied with UIFSA's registration requirements. Chalmers v. Burrough ………………...……..…. 531*

Statutory Requirements for Modifying Another State's Child Support Or- der. K.S.A. 2019 Supp. 23-36,611 includes various requirements that must be met before a Kansas court can modify another state's child-support order. That statute, however, only authorizes a court to modify such an order if it is first registered in this state. Chalmers v. Burrough ……………………………………….…. 531*

Statutory Requirements for Registering Out of State Support Order. K.S.A. 2019 Supp. 23-36,602(a) sets forth the procedure for registering an out-of-state support order in Kansas under UIFSA and requires, among other things, that a party attach "two copies, including one certified copy, of the order to be registered, including any modification of the order." Chalmers v. Burrough …………... 531*

Substantial Compliance with UIFSA's Registration Requirements. Though strict compliance is not necessary, a party still must substantially comply with UIFSA's registration requirements before a Kansas court can take any action concerning an out-of-state child-support order. Chalmers v. Burrough ……….... 531*

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Uniform Procedure for Child Support and Spousal Support. The Kansas Leg- islature—and other state legislatures—enacted the Uniform Interstate Family Sup- port Act (UIFSA) to establish a uniform, nationwide procedure for issuing, modifying, and enforcing child and spousal support. Chalmers v. Burrough …….. 531*

VENUE:

Change of Venue Decision—Appellate Review. Under K.S.A. 60-609, a district court has the discretion to grant or deny a party's motion for change of venue. We review the district court's decision to change venue for an abuse of discretion. Hernandez v. Pistotnik ……………….……………………………..……. 501*

WORKERS COMPENSATION:

Statutes Applied in Determination of Employer's Subrogation Lien. K.S.A. 44-504(b) and (d) are considered and applied in determining an employer's subrogation lien and future credit for workers compensation benefits provided to an injured employee. Hawkins v. Southwest Kansas Co-op Svc. ………………...… 38

(XXXIX)

VOL. 58 COURT OF APPEALS OF KANSAS 409

State v. Williams

___

No. 120,768

STATE OF KANSAS, Appellee, v. JEREMY J. WILLIAMS, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Jury Selection—Purpose of Peremptory Challenge. The purpose of a peremptory challenge is to remove prospective jurors who, though not subject to challenge for cause, are believed to be inclined against a party's interests. Courts generally give parties wide latitude in exercising peremptory challenges as long as their reason for doing so is nondiscriminatory.

2. APPEAL AND ERROR—Trial--Jury Selection—Appellate Review. Appellate courts review a district court's decision allowing a party to use a peremptory challenge for an abuse of discretion.

3. TRIAL—Jury Selection—Statutory Requirement for Peremptory Challenge. K.S.A. 22-3411a does not limit when a party may use a peremptory challenge. Instead, the statute indicates a district court may not require a party to use any peremptory challenges until a jury is passed for cause. But nothing in the statute prohibits a party from using a peremptory challenge earlier if the party chooses to do so.

4. SAME—Jury Selection—Voir Dire Answers Not Evidence. Jurors are not witnesses. Answers to questions during voir dire are not evidence.

5. APPEAL AND ERROR—Trial--Challenges to Verdict Form—Appellate Re- view. Appellate courts have traditionally reviewed challenges to a verdict form under the same standard as jury instructions. But a verdict form is not a jury instruction; the two serve different purposes. In general, the verdict form does not instruct the jury on the laws it will apply. Instead, the jury uses that form to record its decision on each count, claim, or question presented once that decision has been reached.

6. COURTS—Supreme Court Precedent. This court is duty-bound to follow Kansas Supreme Court precedent unless the court has indicated it is departing from its previous position.

7. CRIMINAL LAW—Petition for Postconviction DNA Testing—Appellate Re- view. K.S.A. 2019 Supp. 21-2512 provides an avenue for individuals convicted of certain crimes, including rape, and held in state custody to petition the court that entered judgment for forensic DNA testing. A district court's summary denial of a petition for postconviction DNA testing under K.S.A. 2019 Supp. 21-2512 and a court's interpretation of that statute are questions of law over which appellate courts exercise unlimited review.

410 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams

8. SAME—Petition for Postconviction DNA Testing—Statutory Require- ments. Upon receiving a petition under K.S.A. 2019 Supp. 21-2512, the district court ultimately must determine whether the requested DNA testing meets the requirements of K.S.A. 2019 Supp. 21-2512(a)(1)-(3) and whether the test will produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.

9. SAME—Petition for Postconviction DNA Testing. A petition for postconviction DNA testing under K.S.A. 2019 Supp. 21-2512 may be filed at any time after a defendant's conviction.

10. APPEAL AND ERROR—Lack of Factual Findings by District Court—Re- mand of Case. Ordinarily, appellate courts presume the district court found all facts necessary to support its judgment. But when the record does not support such a presumption and the lack of any factual findings or explanation of the court's decision precludes meaningful appellate review, an appellate court may remand a case for further findings and conclusions.

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed July 10, 2020. Affirmed in part, reversed in part, and remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

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

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

WARNER, J.: A jury convicted Jeremy Williams of two counts of rape for having sex with a 13-year-old girl. Williams now challenges the fairness of his trial and asserts the district court erred when it summarily denied his request for postconviction DNA testing. After having reviewed the parties' arguments and the record before us, we affirm Williams' convictions. But we remand the case so the district court can correct an error in the journal entry memorializing Williams' sentence. And we reverse the district court's summary denial of Williams' request for DNA testing and remand the case so the district court can articulate its findings and conclusions under the procedure outlined by Kansas statutes and Kansas Supreme Court caselaw.

VOL. 58 COURT OF APPEALS OF KANSAS 411

State v. Williams

FACTUAL AND PROCEDURAL BACKGROUND

In July 2015, P.W., then 13 years old, moved from Wichita to Catharine to live with her cousin. While in Catharine, she began texting Williams, who she met on an online dating site. Later that month, P.W. ran away to Hays, where she called Williams—then 25 years old—and asked for a ride to Wichita. Williams drove to Hays, picked up P.W., and returned to Wichita later that day. P.W. and Williams provided different accounts as to what occurred over the next few days. According to P.W., Williams drove her back to his house, where she stayed for a few days. During that time, they had sex two or three times in Williams' bedroom. According to Williams, he dropped P.W. off at her friend's apartment complex the evening he picked her up from Hays. Williams denied having sex with P.W. or taking her to his house. Two days after she left Catharine, Williams drove P.W. to a Walmart in Wichita so she could collect a money wire from her cousin. Wichita police had learned P.W. had run away and would be collecting the transfer. When P.W. and Williams arrived, police identified them and took them into custody. Police interviewed P.W. twice that day. During the first interview, P.W. said Williams had previously kissed her and rubbed his hands on her body, but she denied having sex with him. During the second interview, she stated she had sex with Williams twice. P.W. and Williams subsequently underwent exams by a forensic nurse, who collected DNA swabs. A DNA analysis of P.W.'s vaginal and anal swabs indicated the presence of sperm cells. A comparison of Williams' DNA to that found in the sperm on P.W.'s posterior fourchette swab (which had the greatest number of sperm cells) could not exclude Williams as a contributor. The probability of selecting an unrelated random individual with DNA consistent with the sperm DNA profile was 1 in 1.8 quintillion. The State charged Williams with three counts of rape. Wil- liams' case was eventually tried to a jury, who found him guilty of two of the charges and not guilty on the third. Because rape is an off-grid felony, the district court sentenced Williams to two concurrent life sentences, with no possibility of parole for 25 years. The journal entry of sentencing also indicated that Williams was 412 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams subject to lifetime postrelease supervision for each of these crimes.

DISCUSSION

Williams brings a number of arguments on appeal. In challenging his convictions, he claims two trial procedures—the State's use of a peremptory challenge during jury selection and the wording of the verdict form—individually or in combination violated his right to a fair trial. He also claims the district court erred in imposing lifetime supervision and electronic monitoring in the sentencing journal entry. And he asserts the court erred in summarily denying his pro se motion for postconviction DNA testing. We include additional facts as they become relevant to our discussion.

1. We affirm Williams' convictions, as he received a fair trial.

Williams challenges his convictions in two respects. First, he argues the district court erred in allowing the State to exercise a peremptory strike in the midst of jury selection, instead of waiting until the end of jury selection as parties traditionally do. Second, he asserts the wording on the verdict form, which placed the line for finding the defendant "guilty" above "not guilty," infringed the presumption of his innocence. And he claims that even if these alleged errors are not individually cause for reversing his convictions, the combination of those actions violated his right to a fair trial. We find Williams has not shown any error in the trial leading to his convictions.

1.1. The timing of the State's peremptory challenge, though unusual, was not improper and did not violate Williams' right to a fair trial.

The State, which had the burden to prove Williams had committed the crimes charged, asked the first questions of potential jurors during jury selection. During that process, one of the potential jurors seated in the jury box was removed for cause, and another potential juror—Potential Juror S.C.—was called to take his place. The district court then asked Potential Juror S.C. questions VOL. 58 COURT OF APPEALS OF KANSAS 413

State v. Williams about his age, his occupation, and his courtroom experience. In response to one of these questions, Potential Juror S.C. stated he had been convicted of two counts of aggravated indecent liberties with a child approximately 21 years earlier. Although this case struck close to home for him, the prospective juror stated he could impartially decide the case on the evidence presented. Instead of waiting for Williams to question the jury panel, the State sought to use one of its peremptory challenges—that is, a challenge without showing the prospective juror could not render an unbiased verdict—immediately to remove Potential Juror S.C. from the jury pool. Williams objected, with his attorney pointing out that "[n]obody has had a chance to talk to [S.C.], so I would like that opportunity." The court overruled this objection and granted the State's request. Williams immediately used his first peremptory challenge to remove another potential juror, Potential Juror C.R., from the jury. Jury selection continued, with the State finishing its questions and Williams conducting his inquiry. Once both parties approved the jury pool (that is, passed the jury for cause), the court held a conference outside the presence of the jury so the parties could exercise their remaining peremptory challenges. The jury was then seated. On appeal, Williams renews his argument regarding Potential Juror S.C., claiming the district court erred by allowing the State to exercise a peremptory challenge before he had any opportunity to question the jury panel. Williams argues the State's "premature" peremptory challenge denied his statutory right to question the jury panel and violated his right to an impartial jury under the Fifth and Sixth Amendments to the United States Constitution. The purpose of a peremptory challenge is to remove "prospective jurors" who, though "not subject to challenge for cause, . . . are believed to be 'inclined against' a party's interests." State v. Hill, 290 Kan. 339, 359, 228 P.3d 1027 (2010). Courts generally give parties wide latitude in exercising peremptory challenges as long as their reasons for doing so are nondiscriminatory. See generally State v. Angelo, 287 Kan. 262, 271, 197 P.3d 337 (2008) (distinguishing permissible peremptory challenges from racially discriminatory challenges). We review a district court's decision allowing a party to use a peremptory challenge for an abuse of 414 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams discretion. State v. Hudgins, 301 Kan. 629, Syl. ¶ 3, 346 P.3d 1062 (2015) (applied in context of limiting defendant's voir dire of potential jurors). Williams argues the procedure here ran afoul of K.S.A. 22- 3411a, which he reads to prohibit the State or defendant from using a peremptory challenge until after both parties have passed a jury panel for cause. K.S.A. 22-3411a provides:

"In all felony trials, upon the request of either the prosecution or the defendant, the court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required, so that there will remain sufficient jurors, after the number of peremptory challenges allowed by law for the case on trial shall have been exhausted, to enable the court to cause 12 jurors to be sworn to try the case." (Emphasis added.)

Reviewing this language, we believe Williams reads this statute too narrowly. K.S.A. 22-3411a does not limit when a party may use a peremptory challenge. Instead, the statute indicates a district court may not require a party to use any peremptory challenges until a jury is passed for cause. The reason for this limitation is clear; a court cannot demand a party use a peremptory challenge until the party knows who, if no challenges are exercised, will be on the jury. But nothing in the statute prohibits a party from using a peremptory challenge earlier if the party chooses to do so. Williams cites two cases to support his interpretation of the statute: State v. Mitchell, 234 Kan. 185, 672 P.2d 1 (1983), and State v. Crabb, 51 Kan. App. 2d 159, 343 P.3d 539 (2015). But those cases are factually distinguishable as they involved a "hot- box method" for selecting juries. Mitchell, 234 Kan. at 192; Crabb, 51 Kan. App. 2d at 161, 164. Under that method, a district court calls and passes 12 jurors for cause; the parties either use a peremptory challenge—and a new juror is seated—or pass; this continues until both parties pass or run out of peremptory challenges. Crabb, 51 Kan. App. 2d at 161. The Mitchell and Crabb courts found the jury selection method in K.S.A. 22-3411a preferable to the hot-box method. Un- like the statute, which allows the parties to review the entire seated jury before having to use any peremptory challenges, the hot-box method forces the parties to use their peremptory challenges piecemeal. Mitchell, 234 Kan. at 195-96; Crabb, 51 Kan. App. 2d VOL. 58 COURT OF APPEALS OF KANSAS 415

State v. Williams at 164-65. In such a method, the struck potential juror might have been preferable to the replacement. 51 Kan. App. 2d at 164. And after the last peremptory challenge, the newly seated potential juror could only be removed for cause. 51 Kan. App. 2d at 165. Here, the parties each used one peremptory challenge before the State passed the jury for cause; they used their remaining peremptory challenges after Williams approved the jury. Both the State and Williams used their first challenges voluntarily; the court did not require either to do so. This process did not violate the statute's plain language. Nor did it circumvent the rationale underlying both Mitchell and Crabb. Finally, we question the basis for Williams' underlying argument that he had a right to ask questions of every potential juror. Jurors are not witnesses. Answers to questions during voir dire are not evidence. Williams provides no support for his claim that he should be allowed the opportunity to question a potential juror who will ultimately be excluded, in the hope he can convince the State to use a peremptory challenge elsewhere or obtain a positive response to a question during jury selection. While the timing of the State's peremptory challenge was unusual, it was consistent with K.S.A. 22-3411a. The district court did not abuse its discretion in allowing the State to use its peremptory challenge before the jury had been passed by both parties for cause.

1.2. The wording of the verdict form did not violate Williams' presumption of innocence.

Williams' verdict form placed the line where the jury could find him "guilty" above the line where the jury could find him "not guilty." He argues that this form, which mirrored PIK Crim. 4th 68.110 (2018 Supp.), inverted the presumption of innocence under the Sixth and Fourteenth Amendments to the United States Con- stitution. We exercise unlimited review over the legality of a verdict form. See State v. Johnson, 304 Kan. 924, 931-32, 376 P.3d 70 (2016). Appellate courts have traditionally reviewed challenges to a verdict form under the same standard as jury instructions. After all, the verdict form is part of the packet sent to the jury with the jury instructions after those instructions have been provided by the 416 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams court. Unruh v. Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009). But a verdict form is not a jury instruction; the two serve different purposes. In general, the verdict form does not instruct the jury on the laws it will apply. Instead, the jury uses that form to record its decision on each count, claim, or question presented once that decision has been reached. Given this difference, we question Williams' underlying contention that the arrangement of "guilty" and "not guilty" on the verdict form could cause the jury to disregard the court's instructions on the burden of proof or alter any decision it had previously reached in applying the law to the facts of the case. More importantly here, Williams acknowledges that our Kan- sas Supreme Court rejected his position in State v. Wesson, 247 Kan. 639, 652-53, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991), disapproved on other grounds by State v. Rodgers, 282 Kan. 218, 144 P.3d 625 (2006), and State v. Wilkerson, 278 Kan. 147, 158-59, 91 P.3d 1181 (2004). But he claims Wesson and Wilkerson were wrongly decided. This court is duty-bound to follow Kansas Supreme Court precedent unless the court has indicated it is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). For nearly 30 years, both this court and our Kan- sas Supreme Court have consistently applied the holding in Wes- son. See Wilkerson, 278 Kan. at 159; State v. Vargas, No. 119,741, 2019 WL 5485179, at *5 (Kan. App. 2019) (unpublished opinion), petition for rev. filed November 20, 2019; State v. Pack, No. 110,467, 2015 WL 1513974, at *5 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. 1018 (2015). We have no reason to conclude that our Supreme Court will depart from its holding. The district court did not err in using the PIK jury verdict form.

1.3. Williams has not shown any errors, let alone cumulative errors, deprived him of a fair trial.

Williams claims that even if his other two allegations fell short of reversible error, the combination of those events deprived him of a fair trial. But Williams has not shown any error in the jury VOL. 58 COURT OF APPEALS OF KANSAS 417

State v. Williams selection process or verdict form. Thus, his claim regarding cumulative error also fails. See State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015).

2. We remand the case to correct the sentencing journal entry.

At sentencing, the district court imposed two concurrent life sentences without the possibility of parole for 25 years and ordered Williams to pay certain fees and court costs. The sentencing journal entry, however, also indicates that Williams will be subject to lifetime postrelease supervision and electronic monitoring. Williams argues—and the State agrees—that this was an error and should be corrected. Under Kansas law, off-grid life sentences (like Williams' sentences here) are followed by parole, not postrelease supervision. State v. Ballard, 289 Kan. 1000, 1014, 218 P.3d 432 (2009). A sentencing court cannot order lifetime postrelease supervision when a person has been convicted of an off-grid crime. State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011). Nor may a sentencing court impose conditions of parole. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). Furthermore, a sentence is effective upon pronouncement from the bench, not upon the filing of a journal entry. 294 Kan. at 677. Williams' sentence, which the court announced at his sentencing hearing, did not and could not include any condition of postrelease supervision. The sentencing journal entry is thus incorrect in two respects—in its application of Kansas law and in its recording of Williams' effective sentence. We remand the case to the district court to correct this journal-entry error.

3. The district court erred in summarily denying Williams' request for post-conviction DNA testing.

K.S.A. 2019 Supp. 21-2512(a) provides an avenue for individuals convicted of certain crimes, including rape, and held in state custody to "petition the court that entered judgment for forensic DNA testing." This request may be made "at any time after conviction." K.S.A. 2019 Supp. 21-2512(a). The requested testing sample must meet three criteria; it must be

418 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams

"(1) . . . related to the investigation or prosecution that resulted in the conviction; "(2) . . . in the actual or constructive possession of the state; and "(3) . . . not previously subjected to DNA testing, or [it] can be subjected to re- testing with new DNA techniques that provide a reasonable likelihood of more accurate and probative results." K.S.A. 2019 Supp. 21-2512(a)(1)-(3).

When it receives a petition under this provision, the district court ultimately must determine whether the requested DNA testing meets the requirements of K.S.A. 2019 Supp. 21-2512(a)(1)- (3) and whether the test will produce "noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced" under K.S.A. 2019 Supp. 21-2512(c). State v. Lackey, 295 Kan. 816, 820-21, 286 P.3d 859 (2012). A district court's summary denial of a petition for postconviction DNA testing under K.S.A. 2019 Supp. 21-2512 and a court's interpretation of that statute are questions of law over which we exercise unlimited review. 295 Kan. at 820. After the trial but before sentencing, Williams filed a pro se petition under K.S.A. 2019 Supp. 21-2512, requesting DNA testing. The State had collected various items and samples from Wil- liams and P.W., including swabs from P.W.'s labia majora and mi- nora, posterior fourchette, vagina, and anus, as well as a fitted sheet and futon cover from Williams' bedroom. Although the State identified semen on P.W.'s vaginal, anal, and posterior fourchette swabs and bodily fluids on the sheet and futon cover, the State only conducted a DNA analysis from P.W.'s posterior fourchette swab (because the greatest number of sperm cells were found there). This analysis could not exclude Williams as the source of the DNA. In his petition, Williams requested DNA testing on "all material/ biological material seized during the investigation and prosecution" of his case. The district court did not take up this petition until the sentencing hearing. After pronouncing Williams' sentence, the court denied his request for DNA testing, finding the request was not yet ripe and the statute did not apply:

"[B]ased upon my understanding of the statute and the situation in this case, I don't think [the motion] fits the statutory requirements. And I don't think it is ripe for the Court under these circumstances. I don't think this statute applies in this particular circumstance and so I'll deny the motion."

VOL. 58 COURT OF APPEALS OF KANSAS 419

State v. Williams

The court's journal entry only states that the statute is not applicable; it does not include any further explanation. Williams immediately filed his notice of appeal to his conviction, sentence, and denial of his petition for postconviction DNA testing. Less than two weeks later, before the appeal was docketed, Williams filed a pro se motion to reconsider his request for testing, which the court again denied. On appeal, Williams contests both reasons the district court gave for its dismissal. He argues his claim is ripe because the statute allows a person who has been convicted of one of the listed offenses to petition for DNA testing "at any time after conviction." K.S.A. 2019 Supp. 21-2512(a). And he argues the statute applies to him, as the materials he is requesting to be tested are in the State's possession and related to the State's investigation in this case, and most of that material has not undergone a DNA analysis. The State argues that a person may not petition for testing under K.S.A. 2019 Supp. 21-2512 until after he or she has been sentenced, not merely after he or she is convicted. In particular, the State notes that K.S.A. 2019 Supp. 21-2512 allows a person to "petition the court that entered judgment" (emphasis added), and a criminal judgment under Kansas law consists of a conviction and sentence. State v. Kleypas, 305 Kan. 224, 242, 382 P.3d 373 (2016). We disagree with the State's analysis. While the statute references the court that "entered judgment," K.S.A. 2019 Supp. 21- 2512(a) clearly states a person may file a petition "at any time after conviction." In adopting this provision, the legislature understood the distinction between a conviction and sentence; subsection (c) references the potential for "noncumulative, exculpatory evidence relevant to the claim . . . that the petitioner was wrongfully convicted or sentenced." (Emphasis added.) K.S.A. 2019 Supp. 21- 2512(c). Yet the legislature nevertheless decided to define the timeframe in which a petitioner may file as any time after conviction. We think it unlikely the legislature would use such broad and clear language if it intended a different timeframe to apply. And turning to the specific facts before us, we note the district court did not rule on Williams' petition until after pronouncing his sentence. Thus, any previous objection to the timing of that petition was rendered moot. Accord State v. Bohannon, 3 Kan. App. 420 COURT OF APPEALS OF KANSAS VOL. 58

State v. Williams

2d 448, 451, 596 P.2d 190 (1979) (holding "a premature notice of appeal lies dormant until such time as the judgment . . . is entered," at which time it "has the same effect as if it had been filed simultaneously with the entry of judgment or appealable order"). The court erred when it found Williams' petition to be "unripe." The court's second conclusion—that the statute "does not apply"—presents a different challenge for our review, as the nature of the court's ruling is unclear. Was this merely a restatement of the court's erroneous conclusion that the petition was untimely? Or was it an analysis on the merits that Williams' request did not fall within K.S.A. 2019 Supp. 21-2512(a) and (c)? The record before us does not resolve these questions, as the district court provided no explanation of its decision, either in its original denial of Williams' motion or in its denial of his motion to reconsider. Ordinarily, appellate courts presume the district court found all facts necessary to support its judgment. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015). But the record here does not support such a presumption, and the lack of any factual findings or explanation of the court's decision precludes meaningful appellate review. See State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). Thus, we remand the case to the district court to allow it to consider Williams' motion within the framework set forth in K.S.A. 2019 Supp. 21-2512, with directions that the court articulate its findings and conclusions under that statute.

Affirmed in part, reversed in part, and remanded with directions. VOL. 58 COURT OF APPEALS OF KANSAS 421

Fisher v. Kansas Dept. of Revenue

___

No. 118,830

JAMES RICHARD FISHER III, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

___

SYLLABUS BY THE COURT

1. POLICE AND SHERIFFS—Implied Consent Advisory—Substantial Com- pliance by Officer. An officer substantially complies with K.S.A. 2016 Supp. 8-1001(k) when the officer reads an implied consent advisory to the driver that omits the items listed in subsections (k)(2) ("the opportunity to consent to or refuse a test is not a constitutional right") and (k)(4) (if the driver refuses the test, the officer may charge the driver with a separate crime for refusal).

2. MOTOR VEHICLES—Implied Consent Advisory—Statutory Language "Requires" Not Coercive. The choice of the word "requires" in K.S.A. 2016 Supp. 8-1001(k)(1) is not unduly coercive. When the implied consent advisory is read in context, a reasonable person would understand that he or she retains the right to refuse testing.

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed July 17, 2020. Affirmed.

Sally G. Kelsey, of The Law Office of Sally G. Kelsey, of Lawrence, for appellant.

Joanna Labastida, of Legal Services Bureau, Kansas Department of Reve- nue, for appellee.

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

ARNOLD-BURGER, C.J.: Officer Tracy Russell observed James Richard Fisher III speeding through Lawrence, Kansas. Russell followed Fisher and saw him pull into a driveway. Russell saw Fisher stumble as he exited the vehicle. Fisher had bloodshot eyes, slurred his words, and smelled of alcohol. Russell arrested Fisher and provided him with the implied consent advisories found in the DC-70 form. Fisher declined to take a blood or breath test without an attorney present. Russell then applied for, and received, a search warrant to draw Fisher's blood. A blood draw occurred which indicated that Fisher was driving while under the influence of alcohol. 422 COURT OF APPEALS OF KANSAS VOL. 58

Fisher v. Kansas Dept. of Revenue

Fisher's driver's license was suspended. The suspension was affirmed by the Kansas Department of Revenue. Fisher appealed to the district court. The district court also affirmed the suspension. Fisher appeals to this court. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On an early November 2016 morning, Russell saw Fisher drive through a red light in Lawrence, Kansas. Russell estimated that Fisher was driving around 60 to 70 miles per hour. In order to follow Fisher, Russell briefly drove the wrong way down a one- way street. Russell followed the vehicle and saw it pull into a driveway. Russell saw Fisher step out of the vehicle. According to Rus- sell, Fisher stumbled as he did so. Fisher then looked towards the ground at the trunk of his car and placed his hands on the trunk. Russell asked for Fisher's driver's license and Fisher responded, "'A lawyer.'" Russell indicated that he understood that Fisher was exercising his right to not answer questions without an attorney present. Russell asked Fisher to perform standardized field sobriety tests. Once again, Fisher replied by saying, "'Lawyer.'" Russell said that he believed Fisher was intoxicated because Fisher: stumbled, smelled like alcohol, had bloodshot eyes, and had slurred speech. Russell acknowledged that a person might exhibit those indicators for reasons other than being intoxicated. After Fisher declined to perform the field sobriety tests, Russell placed him under arrest. Russell took Fisher to a local hospital and provided him with the implied consent advisories, through the use of the DC-70 form with a revised date of February 2016. Russell asked Fisher if he would take a blood or breath alcohol content test. Fisher declined to take a test without an attorney present. Russell then applied for, and received, a search warrant for a blood draw. Russell said that he provided Fisher with a completed DC-27 form, which notified Fisher that his driver's license would be suspended. The Kansas Department of Revenue held a hearing and affirmed the suspension of Fisher's driver's license. Fisher petitioned for review with the district court and a trial de novo was held. At VOL. 58 COURT OF APPEALS OF KANSAS 423

Fisher v. Kansas Dept. of Revenue the de novo trial, Fisher offered the police recording of the stop into evidence. The district court affirmed the suspension, holding that there was probable cause to arrest Fisher and that reasonable grounds existed to request testing. Fisher timely appealed.

ANALYSIS

Fisher raises two issues on appeal. First, he argues that Russell did not have probable cause to arrest him, nor did he have reasonable grounds to request that he submit to a blood or breath test. Second, he argues that the implied consent advisories required by statute were not given and that any evidence obtained after the modified advisories were given should not be considered by the court.

Officer Russell had reasonable grounds to request blood or breath testing, and probable cause, to arrest Fisher.

Fisher first argues that Russell did not have probable cause or reasonable grounds to arrest Fisher or to request that he take a blood or breath test. The district court held he had both. We agree. We review a district court's factual findings in a license suspension matter for substantial competent evidence. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 469, 447 P.3d 959 (2019). Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). We do "not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact." Creecy, 310 Kan. at 469. Fisher bears the burden to show that the suspension should be set aside. See K.S.A. 2016 Supp. 8-1020(q). Kansas courts determine whether reasonable grounds existed to believe the person was operating a vehicle while under the influence of alcohol by looking to probable cause standards. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). "'Probable cause is determined by evaluating the totality of the circumstances,' giving consideration to 'the information and fair inferences therefrom, known to the officer at the time of arrest,' with 'no rigid application of factors.'" 424 COURT OF APPEALS OF KANSAS VOL. 58

Fisher v. Kansas Dept. of Revenue

Swank, 294 Kan. at 881 (quoting Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 [2011]).

Fisher relies on the Kansas Supreme Court's holding in City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015), to support his argument that Russell did not have reasonable grounds or probable cause in this case. In Molitor, the court held the officer did not have reasonable suspicion to request a preliminary breath test because Molitor spoke without slurring his words, produced his identifying documents without difficulty, exited and walked away from his vehicle without losing his balance, and passed two field sobriety tests. 301 Kan. at 268-69. The officer noticed that Molitor had watery and bloodshot eyes, a strong odor of alcohol emanated from his vehicle, and that he ran into a curb without stopping his vehicle. The court held, however, that under the totality of the circumstances, one could not reasonably suspect that Molitor was impaired to the point of being under the influence of alcohol. 301 Kan. at 268. The situation in this case is different. Russell observed Fisher speed through a red light in Lawrence. Russell thought Fisher was driving around 60 to 70 miles per hour. Fisher stumbled when ex- iting his vehicle, had slurred speech, bloodshot eyes, and smelled like alcohol. The district court found Russell's observations credible, noting that there was a "very strong odor of alcohol," that Fisher stumbled when he exited the vehicle, and had "slurred speech, and . . . bloodshot eyes." Under the totality of the circumstances, we find that there was substantial competent evidence for the court to conclude that Rus- sell had reasonable grounds to believe Fisher was operating a vehicle while under the influence of alcohol. Russell saw Fisher driving at high speeds through Lawrence early in the morning. Fisher ran a red light. After stopping Fisher, Russell saw him stumble as he exited his vehicle. Fisher's speech was slurred, he smelled of alcohol, and he had bloodshot eyes. Each of these factors could lead to Russell determining there was reasonable grounds, or probable cause, to believe that Fisher was driving while intoxicated. See Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431-32, 962 P.2d 1150 (1998) (considering VOL. 58 COURT OF APPEALS OF KANSAS 425

Fisher v. Kansas Dept. of Revenue driver's speed, the early morning hour, smell of alcohol, and bloodshot eyes when determining probable cause existed). Fisher argues that there could be other reasons that he exhibited the indications of being under the influence of alcohol. For example, he notes that Officer Russell did not know whether Fisher was wearing contacts which could have contributed to bloodshot eyes. Fisher's arguments are essentially asking this court to reweigh the evidence, which this court will not do. The district court considered the evidence and found that Russell had reasonable grounds, or probable cause, to arrest Fisher and request a blood or breath test. Fisher does not meet his burden to show that the district court's decision was erroneous.

The court did not err in denying Fisher's request to disregard the test results.

For his second issue, Fisher asserts that the blood test results should have been disregarded for two reasons, both related to what he believes to be a faulty implied consent notice. First, while he does not dispute that the officer gave him the implied consent advisories, the implied consent notices required by statute reference provisions which the Kansas Supreme Court has held were unconstitutional. Fisher argues that Russell did not comply with the statutory notice provisions because he provided Fisher with a modified implied consent notice that excluded the unconstitutional provisions. Second, he argues that the language in the implied consent notice he was given is unduly coercive because it says that the driver is "'require[d]'" to submit to testing. To determine whether Fisher is right, we must examine the implied consent statute and its requirements. Statutory interpretation presents a question of law over which appellate courts have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). Under the version of the statute in effect at the time of Fisher's arrest, K.S.A. 2016 Supp. 8-1001(a), "[a]ny person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this article, to submit to one or more tests of the person's blood [or] breath." But before a test or tests is administered, "the person shall be given oral and written notice" of nine provisions listed by the statute. K.S.A. 426 COURT OF APPEALS OF KANSAS VOL. 58

Fisher v. Kansas Dept. of Revenue

2016 Supp. 8-1001(k). Those provisions, known as the implied consent advisories, included a statement that there is not a constitutional right to refuse the test and that refusing to submit to the test could result in the individual facing a separate criminal charge. K.S.A. 2016 Supp. 8-1001(k)(2), (4). However, the Kansas Supreme Court held that a driver has a constitutional right to refuse to submit to the requested test, un- dermining the validity of K.S.A. 2016 Supp. 8-1001(k)(2). See State v. Ryce, 303 Kan. 899, 944, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). As for the notice that the individual could face separate criminal charges for refusing to submit to a test, K.S.A. 2016 Supp. 8- 1001(k)(4) was a reference to K.S.A. 2016 Supp. 8-1025 which criminalized a person's refusal to submit to testing. In Ryce I, 303 Kan. at 963, the Kansas Supreme Court held K.S.A. 2014 Supp. 8-1025 was unconstitutional "because it allows the State to crimi- nally punish those who refuse a search that is not grounded in the Fourth Amendment." Subsequently, the Kansas Supreme Court held that providing the notice in K.S.A. 2014 Supp. 8-1001(k)(4) to an individual was "inaccurate and cannot serve as the basis for voluntary consent." State v. Nece, 303 Kan. 888, Syl. ¶ 1, 367 P.3d 1260 (2016) (Nece I), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece II). Based on the holdings in Ryce and Nece, law enforcement began providing revised implied consent advisories to suspected intoxicated drivers. The form in this case, the DC-70, with a revision date of February 2016, does not inform the individual that he or she does not have a constitutional right to refuse to submit to the test, nor does it inform the individual that he or she can be subject to criminal charges for refusing to submit to the breath test. Fisher argues that law enforcement did not provide the statutorily required notices and, in fact, could not constitutionally do so— therefore requiring the court to disregard the test results. This issue has been addressed several times by this court, with each panel determining that a law enforcement officer was not required to strictly adhere to the statutory notice provisions under the circumstances. See Leivian v. Kansas Dept. of Revenue, No. VOL. 58 COURT OF APPEALS OF KANSAS 427

Fisher v. Kansas Dept. of Revenue

119,249, 2019 WL 166541, at *4 (Kan. App. 2019) (unpublished opinion); Ackerman v. Kansas Dept. of Revenue, No. 118,128, 2018 WL 3673168, at *2-3 (Kan. App. 2018) (unpublished opinion), rev. denied 310 Kan. 1061 (2019); State v. Barta, No. 117,990, 2018 WL 1883878, at *5 (Kan. App. 2018) (unpublished opinion); Bynum v. Kansas Dept. of Revenue, No. 117,874, 2018 WL 2451808, at *3 (Kan. App. 2018) (unpublished opinion); White v. Kansas Dept. of Revenue, No. 117,956, 2018 WL 1769396, at *6 (Kan. App. 2018) (unpublished opinion). Although not bound by these decisions, we agree with the analysis provided by our colleagues. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018) (one Kansas Court of Appeals panel is not bound by another panel's decision). Generally speaking, an arresting officer is required to substantially comply with the statutory notice provisions in K.S.A. 2016 Supp 8-1001. "To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute." Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988).

"The purpose of the implied consent advisory is to inform a driver of the law regarding submission to a requested test and the potential consequences arising from a test failure or test refusal. If the information provided by statute is unconstitutional and unenforceable, the purpose of the implied consent is sub- verted if the arresting officer provides a driver with notice of those unconstitutional and unenforceable provisions." Leivian, 2019 WL 166541, at *5.

Because those provisions—advising a driver that there was not a constitutional right to refuse the test and that refusing to submit to the test could result in the individual facing a separate criminal charge—are unconstitutional and unenforceable, they are no longer essential to the statute. An officer substantially complies with the statutory scheme by adhering to the most recent changes in the law, whether that change is strictly reflected in the statute or not. Therefore, law enforcement in this case substantially complied with the statute by providing the implied consent notices from the revised DC-70. This conclusion is also bolstered by the Legislature's clear intent that "if any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional, it 428 COURT OF APPEALS OF KANSAS VOL. 58

Fisher v. Kansas Dept. of Revenue shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section." K.S.A. 8-1007. As a separate defect in the notice, Fisher argues that the first statement of the 2016 implied consent advisories—which states that "Kansas law requires the person to submit to and complete" any requested test—is a misstatement of the law and unduly coercive, resulting in an unconstitutional search. See K.S.A. 2016 Supp. 8-1001(k)(1). We are not asked to determine whether a warning given under K.S.A. 2016 Supp. 8-1001(k)(1) substantially complies with the statute, because it explicitly complies with the statute. Instead, we are asked to determine whether the advisory is unduly coercive. To support his argument, he refers us to State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013). In Edgar, 296 Kan. 513, Syl. ¶ 5, the Supreme Court found it unduly coercive for the officer to improperly advise Edgar that he had no right to refuse a preliminary breath test (PBT). Edgar consented to the PBT but argued that the officer coerced him by saying he had no right to refuse. Accordingly, his consent was not voluntary, and the test results were required to be suppressed. 296 Kan. at 530. But the provisions of K.S.A. 2016 Supp. 8-1001(k) provide significantly more information than the PBT advisories the Su- preme Court found insufficient in Edgar, 296 Kan. 513, Syl. ¶¶ 4- 5. It is the additional provisions that further explain a driver's rights, including the consequences of refusal, and render Edgar inapplicable to these facts. So next we turn to the language of K.S.A. 2016 Supp. 8-1001(k). First, we agree that under the plain language of the statute, advising a driver he or she is required to submit to and complete a requested test is a misstatement of the law. See Ryce II, 306 Kan. at 695 ("Significantly, while the statutory implied consent advisory informs the driver he or she is required to take a blood alcohol content test or face consequences, . . . an officer can only 'request' that a driver submit to a test."). Although a driver is "deemed to have consented," the driver is not required to consent. See K.S.A. 2016 Supp. 8-1001(a) ("Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this article," to submit to a breath, VOL. 58 COURT OF APPEALS OF KANSAS 429

Fisher v. Kansas Dept. of Revenue blood, or urine test.). But just as the statute provides that the driver is deemed to have given consent, that consent is "subject to the provisions" of the statute. K.S.A. 2016 Supp. 8-1001(a). And the implied consent advisory goes on to discuss the consequences of refusal of an officer's test "request." K.S.A. 2016 Supp. 8- 1001(k)(4), (5), (7). In interpreting K.S.A. 2016 Supp. 8-1001(k)(1), rather than isolating a particular provision, we must examine the statutory scheme, considering "various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible." State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710 P.2d 25 (1985) ("To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible."). "[W]ords are given meaning by their context." Scalia and Garner, Reading Law: The In- terpretation of Legal Texts, p. 56 (2012). Accordingly, K.S.A. 2016 Supp. 8-1001(k)(1) should not be read in isolation. The other provisions of K.S.A. 2016 Supp. 8-1001 and the resultant DC-70 form make it clear that testing is voluntary. In fact, the meaning of "requires" is limited by paragraphs 3 and 8 of the DC-70: "If you refuse" your driving privileges will be suspended and "[r]efusal to submit to testing" may be used against you at trial. See K.S.A. 2016 Supp. 8-1001(k)(5), (7). And most telling is the last provision, "Will you take a [breath, blood, or urine] test?" These provisions, when read together, clarify that a person may refuse the test, but there are consequences to that refusal. The statute consistently directs law enforcement officers to "request a person to submit to a test." See K.S.A. 2016 Supp. 8- 1001(b), (c), (h), (i), (m). Likewise, officers must give the implied consent advisories—disregarding the provisions invalidated as unconstitutional, as discussed—which reference the driver's ability to refuse testing and potential consequences of test refusal or failure. See K.S.A. 2016 Supp. 8-1001(k)(5)-(9). Reading these provisions as a whole, the choice of the word "requires" in subsection (k)(1) is not unduly coercive. When read in context, a reasonable person would understand that he or she retains the right to refuse testing. In fact, the DC-70 explicitly gives the driver a choice at its conclusion whether to refuse testing. 430 COURT OF APPEALS OF KANSAS VOL. 58

Fisher v. Kansas Dept. of Revenue

Moreover, Fisher's actions bolster this interpretation. The language did not coerce Fisher into taking the blood test. He refused the test. He clearly understood the language to mean he could refuse. This is not a case like Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 840 P.2d 448 (1992), where we have to determine whether the officer "substantially complied" with a legislative mandate. He did. He read the language to Fisher as it appears in the statute. So the Meigs holding that no prejudice need be shown when the notice does not substantially comply with the statute, is inapplicable here. See 251 Kan. 677, Syl. ¶ 4. There was not only substantial compliance, there was strict compliance with the statute. And, we cannot find unconstitutional coercion, when there was no coercion. In other words, the language was not so coercive as to convince Fisher to take the test. The officer was required by statute to provide the implied consent advisories. He did. Fisher refused the requested test. That was all that was necessary to suspend his driver's license. His license was properly suspended for refusing the test.

Affirmed. VOL. 58 COURT OF APPEALS OF KANSAS 431

Johnson v. Kansas Dept. of Revenue

___

No. 119,151

MORRIS JOHNSON, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Evidence—Whether Substantial Competent Evi- dence Supports District Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and they must disregard any conflicting evidence or other inferences that might be drawn from it.

2. SAME—Whether Substantial Competent Evidence Supports District Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts will not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.

3. SEARCH AND SEIZURE—Exclusionary Rule—No Application to Driv- er's License Proceedings. The exclusionary rule—which prohibits the admission of evidence at trial that officers or other governmental officials obtained through an unlawful search under the Fourth Amendment of the United States Constitution—does not apply in civil administrative driver's license proceedings.

4. SAME—Exclusionary Rule—Driver's License Proceedings. A driver may raise Fourth Amendment claims in the administrative driver's license hearing, but such claims do not trigger the exclusion of resultant evidence.

5. CONSTITUTIONAL LAW—Due Process—Right to Be Heard. Constitu- tionally protected procedural due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of life, liberty, or property.

6. SAME—Due Process Required before Suspension of Driver's License. Sus- pension of a person's driver's license involves state action that adjudicates important interests of the licensees. In such cases the State cannot take the license away without the procedural due process required by the Fourteenth Amendment.

7. SAME—Driver's License Suspension Hearing—Statutes Allowing Hearing and Appeal Satisfy Due Process Concerns. The statutory provisions that allow an administrative hearing and further appeal to the district court for a 432 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue

trial de novo on a driver's license suspension satisfy procedural due process concerns. K.S.A. 2019 Supp. 8-1020; K.S.A. 2019 Supp. 8-259.

8. SAME—Court Reviews Constitutional Claim under Appropriate Standard. If a constitutional claim is governed by a specific constitutional provision, such as the Fourth or Eighth Amendment, the court must analyze the claim under the standard appropriate to that specific provision, not under the rubric of substantive due process.

9. SAME—Fourth Amendment Application—All Governmental Action. Gen- erally, the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants.

10. SEARCH AND SEIZURE—Breath Test Considered a Search under Fourth Amendment. A breath test is considered a search for Fourth Amend- ment purposes.

11. SAME—Warrantless Search—Fourth Amendment Analysis. Whether a warrantless search is in a manner consistent with an exception to the warrant requirement necessarily depends on a Fourth Amendment analysis. Accord- ingly, we do not analyze it under the substantive due process rubric.

12. CONSTITUTIONAL LAW—Substantive Due Process. Substantive due process has been described as protection from arbitrary government action.

13. SAME—Substantive Due Process Limits—Determination Whether Legis- lation or Government Officer's Act. Substantive due process protection limits what the government may do in both its legislative and executive capacities. Criteria to identify what is fatally arbitrary differ depending on whether it is legislation or the specific act of a government officer at issue.

14. SAME—Abusive Executive Action—Egregious Official Conduct Is Arbi- trary. In cases involving abusive executive action, only the most egregious official conduct can be said to be arbitrary in the constitutional substantive due process sense.

15. STATUTES—If Legitimate and Substantial State Interest—No Violation of Due Process Clause. If a statute is necessary for the effectuation of a legitimate and substantial state interest, and not applied in an arbitrary or capricious manner, it does not violate the Due Process Clause.

Appeal from Cowley District Court; LADONNA L. LANNING, judge. Opinion filed July 17, 2020. Affirmed.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Adam D. King, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

VOL. 58 COURT OF APPEALS OF KANSAS 433

Johnson v. Kansas Dept. of Revenue

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

ARNOLD-BURGER, C.J.: Morris Johnson appeals the district court's decision affirming the administrative suspension of his driver's license after he was involved in a single-vehicle, noninjury accident in January 2016. He raises two primary challenges: First, he challenges the court's finding that the officer had statutory authority to request blood-alcohol testing; and second, he asserts that the officer or the agency violated his due process rights after the officer read an unconstitutional implied consent advisory. Because we find that the district court relied on substantial competent evidence to find that the officer had reasonable grounds to believe that Johnson operated his vehicle while under the influence of alcohol before requesting a chemical test, the district court did not err. And because we find that Johnson has established no constitutional due process violation after the officer read implied consent advisories later found unconstitutional, his claim fails.

FACTUAL AND PROCEDURAL HISTORY

On an evening in January 2016, dispatchers sent Master Trooper Robert LaVelle to a car accident with possible injuries in Cowley County, Kansas. While the officer was still en route, another report came in that it was a noninjury accident, so he slowed down. When LaVelle arrived, he began to investigate the accident while the driver—later identified as Johnson—was with EMS workers in an ambulance. Because there were no skid marks and the vehicle was upside down in the opposite ditch, LaVelle ultimately determined Johnson had failed to navigate a curve, gone off the road, then overcorrected and rolled the vehicle off into the opposite ditch. After his investigation, LaVelle told the EMS workers to bring Johnson back to his patrol car when they were finished evaluating and treating him. Eventually, they began to escort Johnson from the ambulance to the trooper's patrol car. LaVelle testified he noticed Johnson sway from one side to the other as he walked to the car and the firefighters had to weave around Johnson to keep up with him. The lights from the patrol car reflected in such a way to make a 434 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue straight line from the ambulance, so LaVelle could see Johnson go from one side of the line to the other as he was walking. Once Johnson was placed in the car, an EMS worker told LaVelle that Johnson had given the wrong birth date while in the ambulance and that he had smelled a very strong odor of alcohol while in the ambulance with Johnson. LaVelle also noticed the odor of alcohol and that Johnson had bloodshot eyes. Johnson failed some nonstandardized field sobriety tests but LaVelle chose not to perform the walk-and-turn test or the one-legged-stand test because of the accident. As a result, LaVelle read Johnson his Mi- randa rights and placed him under arrest for driving under the influence of alcohol (DUI). LaVelle then provided Johnson with a copy of the implied consent advisories form (DC-70) and asked Johnson to submit to an evidentiary breath test. The DC-70 advisory form provided to Johnson stated, in part:

"1. Kansas law (K.S.A. 8-1001) requires you to submit to and complete one or more tests of breath, blood or urine to determine if you are under the influence of alcohol or drugs or both. "2. The opportunity to consent to or refuse a test is not a constitutional right. . . . . "4. If you refuse to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence if you have a prior refusal for an evidentiary test for alcohol or drugs or a prior conviction or diversion for DUI or driving a commercial motor vehicle with an alcohol content of .04 or more, and such prior refusal or conviction occurred on or after July 1, 2001, and when you were 18 years of age or older."

Johnson agreed to take a breath test, which revealed he had a blood-alcohol concentration of 0.163. LaVelle then completed and provided Johnson with a certification and notice of suspension form (DC-27). Johnson formally requested an administrative hearing. The administrative hearing officer affirmed the suspension of John- son's driving privileges, finding LaVelle had reasonable grounds to believe Johnson was DUI and reflecting Johnson was involved VOL. 58 COURT OF APPEALS OF KANSAS 435

Johnson v. Kansas Dept. of Revenue in a motor vehicle accident. The hearing officer also rejected John- son's challenge to the advisories. Johnson timely petitioned for judicial review, arguing the officer lacked reasonable grounds to request testing, that probable cause to arrest him was lacking, and that the advisories in the DC- 70 coerced his consent in violation of his due process rights. After a hearing, at which LaVelle and Johnson testified, the district court denied Johnson's petition, affirming the suspension of his driving privileges. First, the court noted the facts were sufficiently similar to Wright v. Kansas Dept. of Revenue, No. 116,777, 2017 WL 6062260 (Kan. App. 2017) (unpublished opinion), rev. denied 310 Kan. 1071 (2019), to warrant the same outcome. When discussing whether LaVelle had probable cause to arrest Johnson for a DUI, the court explained:

"Trooper LaVelle completed a 20- to 30-minute investigation of the accident scene before even speaking to [Johnson]. He noted no skid marks in the accident and that it was of sufficient severity to roll the vehicle. Under the Poteet [v. Kan- sas Dept. of Revenue, 43 Kan. App. 2d 412, 233 P.3d 286 (2010)] case, the officer's belief and reasonable basis for finding under the influence of alcohol was only based on his observations of the accident scene and a statement from EMS. There was no meeting of that officer with or testing of the driver. Here, in addition to the scene of the accident and the statement of EMS, Trooper LaVelle noted on the DC-27 report admitted into evidence several observations of [John- son] listed in paragraph no. 7, without even any testing required. As to Trooper LaVelle doing no walking test, [Johnson's] argument that the accident could have caused him to weave when walking towards the vehicles is unpersuasive. [John- son] refused treatment from EMS, so no injury was sufficient to prevent his walking. And his walking to the officer or trooper's vehicle was at least 45 minutes to an hour after the accident and after the observations by the EMS, as far as injuries were concerned to petitioner."

Johnson timely appealed.

ANALYSIS

The officer had statutory authority to request a breath test.

Johnson argues the district court erred in concluding the officer had reasonable grounds to request a breath test or probable cause to arrest him for DUI. First, he asserts the court committed legal error by applying an incorrect legal standard when evaluating probable cause, warranting a remand so the district court can apply the correct standard. Alternatively, Johnson points to the 436 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue lack of any field sobriety testing before his arrest as support to overturn the suspension.

Our standard of review is substantial competent evidence.

When reviewing a district court's decision in a driver's license suspension case, appellate courts generally will determine whether substantial competent evidence in the record supported the district court's factual findings and whether the conclusion de- rived from those findings is legally correct. Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1213, 442 P.3d 1038 (2019). Substantial competent evidence is evidence that has both relevance and substance and provides a substantial basis of fact from which the court can reasonably resolve the issues. Wiles v. Amer- ican Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015). In Casper, the Kansas Supreme Court clarified that "'[i]n determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it.'" (Emphasis added.) 309 Kan. at 1220; see also Po- teet v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 414, 233 P.3d 286 (2010) ("[W]e do not consider other evidence that might support a different result as long as sufficient evidence supports the district court's decision."). Nor will this court reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). Before the KDOR may suspend a person's driver's license for a breath test failure, a law enforcement officer must certify that the officer had reasonable grounds to believe that the person had operated a vehicle while under the influence of alcohol. K.S.A. 2015 Supp. 8-1002(a)(2). Whether an officer had "reasonable grounds" is a mixed question of law and fact, so this court will independently review the district court's ultimate legal conclusion—whether reasonable grounds existed—but will defer to the VOL. 58 COURT OF APPEALS OF KANSAS 437

Johnson v. Kansas Dept. of Revenue district court's factual findings. Casper, 309 Kan. at 1213 (citing Poteet, 43 Kan. App. 2d at 415).

We review legal standards applicable in an administrative driver's license suspension case.

As a starting point, we briefly review some of the legal standards applicable in an administrative driver's license suspension case. The implied consent statute requires an officer to request a person submit to testing under certain conditions. The statute in effect when the State suspended Johnson's driver's license provided:

"A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If, at the time of the request, the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any violation of any state statute, county reso- lution or city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury." K.S.A. 2015 Supp. 8-1001(b).

Based on this provision, two predicates need to be established before an officer is authorized to request an evidentiary breath test: (1) reasonable grounds to believe a person is DUI; and (2) the person has been placed under arrest, taken into custody, or been involved in a car accident. See also K.S.A. 2015 Supp. 8- 1002(a) (requiring officer to certify these facts after a test failure or refusal).

Johnson was involved in a vehicle accident that damaged property.

The parties agree that Johnson was involved in a car accident and the record supports that fact. Based on the plain language of the statute, LaVelle did not need to arrest Johnson prior to requesting the test because the car accident supplied the necessary basis to support the second prong. Even so, the first prong was also established.

438 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue

The officer had probable cause to believe Johnson was operating a vehicle under the influence of alcohol.

Kansas courts have long held that "reasonable grounds" under the implied consent statute resembles probable cause and "[p]robable cause exists where the officer's knowledge of the surrounding facts and circumstances creates a reasonable belief that the defendant committed a specific crime. Probable cause does not require an officer have evidence of every element of the crime." Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010). Courts determine the existence of probable cause by evaluating the totality of the circumstances. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012) (citing Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 [2011]). Although these concepts are basically synonymous, the Kan- sas Supreme Court has also said that "an officer may have reasonable grounds to believe a person is operating a vehicle under the influence sufficient to request a test under the statute—but not have the probable cause required to make an arrest under K.S.A. 8-1001." Smith, 291 Kan. at 514. Here Johnson argues that LaVelle had no authority to request a breath test because he did not have the requisite reasonable grounds. Johnson asserts that (1) the district court improperly relied on a disapproved definition of probable cause; and (2) reasonable grounds did not exist based on the lack of sufficient information that Johnson was driving while under the influence.

The district court applied the correct probable cause standard.

Johnson first contends the district court applied the wrong legal standard when evaluating probable cause, asserting the KDOR improperly referenced a definition later disapproved of by the Kansas Supreme Court. The panel decision in Poteet relied on previous language providing that "[p]robable cause to arrest is reached when a reasonably prudent police officer would believe that guilt is 'more than a mere possibility.'" 43 Kan. App. 2d at 416. As Johnson points out and the KDOR acknowledges, the VOL. 58 COURT OF APPEALS OF KANSAS 439

Johnson v. Kansas Dept. of Revenue

Kansas Supreme Court explicitly disapproved of this language in Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 21, 290 P.3d 555 (2012). Sloop clarified that probable cause exists when

"'"the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.'" 296 Kan. at 21.

That said, we agree with the KDOR that merely referencing Poteet in its ruling does not mean the district court applied the disapproved definition of probable cause. The district court's use of Poteet was simply to compare the facts supporting a probable cause finding. The court specifically noted that the probable cause finding in Poteet was "only based on [the officer's] observations of the accident scene and a statement from EMS" and "[t]here was no meeting of that officer with or testing of the driver." In contrast, the court here found that the facts showed: (1) LaVelle had completed a 20- to 30-minute investigation of the scene before speaking with Johnson; and (2) LaVelle observed several signs of impairment—including an odor of alcohol, failed sobriety tests, slurred speech, bloodshot eyes, difficulty communicating, poor balance/coordination, and Johnson admitting he consumed alcohol. Although the court never explicitly stated as much, the record establishes that the court correctly considered the totality of the circumstances when evaluating probable cause. Nor did the district court err in its conclusion that these facts supported a finding of probable cause to arrest Johnson.

Substantial competent evidence supports the district court's findings.

As Johnson succinctly explains in his brief, his "chief argument is that the trooper did not do any sort of testing or analysis" before placing him under arrest for DUI and requesting a blood- alcohol test, thus the officer lacked sufficient information to establish the required probable cause. Johnson also contends that he could easily explain the available evidence by the fact he was just in a car accident. These arguments are not persuasive. First, the record refutes Johnson's "chief argument." While LaVelle agreed that he chose not to ask Johnson to perform the 440 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue walk-and-turn test or the one-legged-stand test because of the accident, his testimony suggests he performed at least some field sobriety testing. During redirect examination at the trial, the following exchange occurred:

"[Counsel for KDOR]: . . . [I]sn't it true that on some of your testing, you didn't do the walk and turn and one-legged stand test because he'd been in an accident? [LaVelle]: That's correct, sir." (Emphasis added.)

The administrative hearing officer's notes also reflect Johnson failed two nonstandardized tests, specifically the alphabet test and the "Finger test." Second, in reviewing the evidence we "must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it." Casper, 309 Kan. at 1220. Substantial competent evidence supported the district court findings. More specifically:

 Johnson was in an accident while it was still light outside, in which he missed a curve, overcorrected, and rolled into a ditch.  There were no skid marks.  Johnson totaled his vehicle.  Attending EMS and the arresting officer both noted a "very strong odor" of alcoholic beverage coming from Johnson.  Trooper LaVelle observed Johnson weaving while he walked.  Lavelle noticed Johnson had bloodshot eyes.  Johnson had no apparent injuries from the accident.  Johnson declined medical treatment.  LaVelle also noted that Johnson provided an incorrect date of birth to the EMS attendants.

Finally, Johnson asks this court to reweigh the evidence to support an alternate conclusion: that the officer misinterpreted his observations as signs of impairment, when they could have easily been explained as consequences of the car accident. This analysis would deviate from the standard of review. See Casper, 309 Kan. VOL. 58 COURT OF APPEALS OF KANSAS 441

Johnson v. Kansas Dept. of Revenue at 1220. As mentioned, the district court found multiple facts that supported the reasonable grounds ruling: (1) LaVelle's investigation of the accident—specifically the lack of any skid marks on the road—suggested Johnson had missed the curve, overcorrected, and rolled the vehicle into the ditch; (2) EMS workers made statements suggesting Johnson was impaired; (3) LaVelle observed signs of impairment in Johnson; and (4) Johnson's refusal of treatment and delay after the accident—which both un- dercut his argument that injuries from the accident explained his weaving. Each of these factual findings are supported by LaVelle's testimony recounting his observations that evening. In sum, the facts here present a substantial factual basis to support the officer's belief that the car accident occurred because Johnson was driving while under the influence of alcohol. Those facts supported the district court's ultimate conclusion that probable cause existed to support a lawful arrest. And the accident established the necessary predicate without the arrest, so the officer had to request a breath test because he had reasonable grounds to believe Johnson was DUI. That test suggested Johnson was driving with a blood-alcohol concentration above the limit permitted by Kansas law. We find that substantial competent evidence supports the district court's conclusions and its legal analysis was correct.

The State did not violate Johnson's due process rights.

Johnson next argues the officer violated his due process rights because the officer incorrectly advised him that the opportunity to consent or refuse a blood-alcohol test is not a constitutional right and that he could be charged with a crime for refusing the test. As the KDOR points out, Johnson's claim is somewhat difficult to discern because he appears to make three separate but related arguments: (1) The breath test results were obtained unlawfully because his consent was coerced in violation of the Fourth Amend- ment; (2) his procedural due process rights were violated based on Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 133 P.3d 104 (2006); and (3) his substantive due process rights were violated based on State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II).

442 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue

We examine our standard of review.

Because appeals from the administrative suspension of driver's licenses are subject to review under the Kansas Judicial Re- view Act (KJRA), this court's scope of review is limited by K.S.A. 77-601 et seq. On appeal, the burden of proving the invalidity of an agency action rests on the asserting party—in this case John- son. See K.S.A. 77-621(a)(1). Under K.S.A. 77-621(c), this court can only grant relief if one or more of the eight listed circumstances are present. In his petition for review of administrative hearing order, Johnson delineates these four statutory bases for his petition:

"[The agency has] acted beyond the jurisdiction conferred by law; [the agency] has erroneously interpreted or applied the law; [the agency] has engaged in an unlawful procedure or has failed to follow prescribed procedure; and [the agency] action is based upon a determination of fact that is not supported by substantial evidence when viewed in light of the record as a whole."

In addition, matters of statutory and constitutional interpretation "raise pure questions of law subject to unlimited appellate review." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 1, 176 P.3d 938 (2008), overruled on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048 (2015). As a result, when resolving Johnson's claims involves either statutory or constitutional interpretation, this court exercises unlimited review. To begin, the parties agree that some of the information in the implied consent advisories Johnson received were later declared unconstitutional. Just a month after Johnson's failed breath test, the Kansas Supreme Court held that the statute imposing criminal penalties on a driver for withdrawing his or her implied consent or refusing to submit to a breath test was facially unconstitutional. Ryce I, 303 Kan. 899, Syl. ¶ 12. Similarly, in State v. Nece, 303 Kan. 888, 897, 367 P.3d 1260 (2016) (Nece I), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), our Supreme Court held that giving unconstitutional implied consent advisories before a defendant's consent leads to coercion. VOL. 58 COURT OF APPEALS OF KANSAS 443

Johnson v. Kansas Dept. of Revenue

To date, the Kansas Supreme Court has not invalidated the entire Kansas implied consent statutory scheme and has not expressed willingness to do so.

The exclusionary rule does not apply in administrative driver's license suspension cases.

That said, the Ryce and Nece decisions—which both involved criminal DUI trials—have little bearing on Johnson's administrative driver's license suspension case. As the Kansas Supreme Court has recognized, an administrative suspension is a civil matter and "civil and criminal proceedings are wholly separate from one another and are intended to serve two different purposes." Martin, 285 Kan. at 642. The court found that the exclusionary rule—which prohibits the government from submitting evidence at trial that was obtained through an unlawful search under the Fourth Amendment—does not apply in civil administrative driver's license proceedings. Martin, 285 Kan. at 646; see also Kings- ley v. Kansas Dept. of Revenue, 288 Kan. 390, 396, 204 P.3d 562 (2009) ("[A] petitioner may raise Fourth Amendment claims, but such claims have no practical effect [meaning such claims do not trigger the exclusion of resultant evidence] in the administrative context."). Johnson makes clear in his brief that he does not believe cases discussing the exclusionary rule and suppression of evidence are relevant, yet he mainly cites criminal cases analyzing those issues. See Ryce I, 303 Kan. at 944 ("Fourth Amendment principles recognize that a consent implied through 8-1001 can be withdrawn."); State v. Edgar, 296 Kan. 513, 527, 294 P.3d 251 (2013) ("[I]t is well established that consent to search may be withdrawn in other contexts when warrantless Fourth Amendment searches are premised on that consent."). Johnson does cite Sloop, 296 Kan. 13, asserting that it is directly analogous to the facts here. But Sloop's driver's license suspension was overturned because the Kansas Supreme Court determined the arresting officer lacked probable cause, precluding statutory authority to even request the test. 296 Kan. at 23. Johnson seeks to characterize this as suppressing "the results of the request for testing (in that case a refusal)," but that is not a fair description. The Sloop court essentially determined the suspension would be 444 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue invalid even if the driver had consented since the officer lacked statutory authority to request the test. In contrast, as discussed, the officer here had statutory authority to request Johnson submit to testing, so any reliance on Sloop is misguided. And finally, even if we were to recognize the application of the exclusionary rule in the context of an administrative driver's license suspension, we would find the good-faith exception to the exclusionary rule applies under these circumstances. The good- faith exception to the exclusionary rule initially applied when a law enforcement officer reasonably relied on a search warrant later found to be invalid, but the exception has since been extended to law enforcement officers who reasonably rely on a statute authorizing a warrantless search later found to be unconstitutional. See Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); State v. Daniel, 291 Kan. 490, 498-500, 242 P.3d 1186 (2010) (adopting Krull), cert. denied 563 U.S. 945 (2011). To determine whether a law enforcement officer reasonably relied on a statute, courts are to consider whether the Legisla- ture "'wholly abandoned its responsibility to enact constitutional laws'" and whether the statute was so clearly unconstitutional that a reasonable officer should have known that it was unconstitutional. Daniel, 291 Kan. at 500 (quoting Krull, 480 U.S. at 355); State v. Kraemer, 52 Kan. App. 2d 686, Syl. ¶¶ 6-7, 371 P.3d 954 (2016). Here, it is undisputed that Johnson was arrested before the release of the Ryce I and Nece I decisions by the Kansas Supreme Court. As this court found in Kraemer, 52 Kan. App. at 699, there is "nothing here to suggest either that the Kansas Legislature wholly abandoned its responsibility to enact constitutional laws or that [K.S.A. 2015 Supp. 8-1025] was so clearly unconstitutional . . . that a reasonably well-trained officer would have known that it was unconstitutional." When LaVelle arrested Johnson, K.S.A. 2015 Supp. 8-1001 required that he advise Johnson of the potential criminal consequences of refusal before asking him to submit to testing. We would not expect a reasonable law enforcement officer to predict the answer to this difficult constitutional question. See State v. Perkins, 310 Kan. 764, 771, 449 P.3d 756 (2019) (good-faith exception applied in criminal DUI case when officer VOL. 58 COURT OF APPEALS OF KANSAS 445

Johnson v. Kansas Dept. of Revenue gave unconstitutional implied consent advisory). The good-faith exception to the exclusionary rule would allow admission of the breath test result under Fourth Amendment jurisprudence. In short, Johnson has not provided a persuasive argument that he is entitled to relief based on Fourth Amendment principles. So the analysis must turn to whether Johnson's due process rights were violated under K.S.A. 8-1001 et seq. Yet whether Johnson is alleging a procedural or substantive due process violation is difficult to discern from his brief. As a result, we will discuss both.

Johnson fails to establish a procedural due process violation.

Constitutionally protected procedural due process requires that a person be afforded a right to be heard in a meaningful way before being deprived of life, liberty, or property. U.S. Const. amend. XIV; Kan. Const. Bill of Rights, § 18; Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 462, 447 P.3d 959 (2019). John- son correctly cites Kempke in support of a right to procedural due process in a driver's license suspension case.

"A person's entitlement to due process in drivers' license suspension cases is well-settled. '"Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." [Citations omitted.]'" 281 Kan. at 776.

In Kempke, the Kansas Supreme Court determined that the provisions allowing an administrative hearing and further appeal to the district court for a trial de novo on a driver's license suspension satisfy procedural due process concerns. 281 Kan. at 794-95 ("Due process requires notice and a meaningful hearing before formal action is taken to deprive a person of his or her license; both of these are provided under current Kansas law."); see K.S.A. 2019 Supp. 8-1020. K.S.A. 2019 Supp. 8-259; see also Creecy, 310 Kan. at 465 (holding a mandatory $50 administrative fee before a driver can exercise the right to a hearing on the suspension of driving privileges is facially unconstitutional as a deprivation of procedural due process); Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 215, 755 P.2d 1337 (1988) ("'The Kansas statute, 446 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue

which allows for a full evidentiary hearing before driving privileges are suspended, does not violate due process merely because the plastic driver's license is taken and a paper license substituted in its place.'"). This court is duty-bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). As the KDOR points out, Johnson never alleges that he was deprived a chance for an administrative review or trial de novo on his claims. Thus, his procedural due process claim fails because the record shows both administrative and judicial review of his driver's license suspension.

Because Johnson's claim is covered by the Fourth Amend- ment, he cannot pursue a substantive due process claim.

The Fourteenth Amendment to the United States Constitution protects both procedural and substantive due process rights against state government interference. See State v. Robinson, 303 Kan. 11, 175, 363 P.3d 875 (2015). Because Johnson contends very broadly that his due process rights were violated, we next look to his claim of a violation of substantive due process under these facts. We begin with the rule established by the United States Su- preme Court that "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amend- ment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). In Martin, 285 Kan. at 635, the Supreme Court found the "[g]enerally the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants." A breath test is considered a search for Fourth Amendment purposes. Nece I, 303 Kan. at 890. Whether a warrantless search in a manner consistent with an exception to the warrant requirement—consent being the one relied on here—the foundational issue necessarily depends on a Fourth Amendment analysis. We conclude that under Lanier, we cannot analyze this VOL. 58 COURT OF APPEALS OF KANSAS 447

Johnson v. Kansas Dept. of Revenue case under a substantive due process rubric. The case must rise or fall on a Fourth Amendment analysis. We have already examined why Johnson's claim fails under a Fourth Amendment analysis.

Johnson fails to establish a substantive due process violation.

But even examining Johnson's substantive due process claim, we find it fails. Substantive due process has been described as protection from arbitrary government action. Darling v. Kansas Water Office, 245 Kan. 45, 51, 774 P.2d 941 (1989). It protects fundamental liberty interests against government encroachment. See Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). "Among recognized substantive due process liberty interests are the right to bear and raise children, the right to marry, and various other rights closely allied with those explicitly guaranteed in the Bill of Rights." Taylor v. Kansas Dept. of Health and Environment, 49 Kan. App. 2d 233, 244, 305 P.3d 729 (2013). "While due process protection in the substantive sense limits what the government may do in both its legislative, and its executive capacities, criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue. [Citations omitted.]" County of Sac- ramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). It appears Johnson is claiming the driver's license suspension statute itself violates his substantive due process rights. We draw this conclusion because he makes no claim against any individual government actor, except perhaps LaVelle who read the now unconstitutional advisory to him. But cases involving abusive executive action "emphasize[] that only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.'" 523 U.S. at 846. The parties agree that LaVelle merely read the statutorily mandated implied consent advisory to him—an advisory that our Supreme Court had not yet declared unconstitutional in the criminal context. Such conduct could not reasonably be described as egregious official conduct. Nor does he make a specific claim against the government agency—Kansas Department of Revenue—as the "bad actor" here. Although in his petition for review of administrative hearing 448 COURT OF APPEALS OF KANSAS VOL. 58

Johnson v. Kansas Dept. of Revenue order he claims the agency has erroneously interpreted or applied the law and the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure, he does little on appeal to pursue that argument except for a conclusory statement: "Al- lowing the government to suspend driving privileges based upon testing results obtained through involuntary consent violates Due Process." We should not be forced to speculate about his argument and the support for it or lack thereof. 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 like failing to brief the issue. In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018). So we decline to examine Johnson's substantive due process claim as it relates to egregious action on the part of a governmental agency—here the Kansas Department of Revenue. Because Johnson makes no cognizable claim regarding substantive due process related to any individual or agency government actor, the only alternative is a legislative claim. In reviewing legislation as a violation of substantive due process, the Kansas Supreme Court has held that "statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not an arbitrary or capricious in application, are not invalid under the Due Process Clause. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 318, 532 P.2d 1263 (1975); see also Brown v. Wichita State University, 219 Kan. 2, 21, 547 P.2d 1015 (1976) (noting that when legislation is challenged as violative of due process, the challenger must demonstrate that the legislation bears no reasonable relation to a permissible legislative objective). Johnson's substantive due process claim appears to rely on language in Ryce I. He points to the court's quote from United States v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982), that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort.'" Ryce I, 303 Kan. at 956. But we must put this quote in context. The Ryce I court's substantive due process analysis centered on the fact that the driver in that case had refused a test. So K.S.A. 2014 Supp. 8-1025 (criminalizing refusal to take a VOL. 58 COURT OF APPEALS OF KANSAS 449

Johnson v. Kansas Dept. of Revenue breath test) was punishing Ryce for doing something he had a right to do—refuse the breath test. It was K.S.A. 2014 Supp. 8-1025 that violated substantive due process, not K.S.A. 2014 Supp. 8- 1001. That was not the case here. Johnson took the test. And clearly, based on the court's decision in Nece II, an implied consent advisory that unconstitutionally threatens criminal prosecution for refusing a test is not voluntary and, based on the exclusionary rule, cannot be used against a defendant in a criminal trial. 306 Kan. at 681. But this is not a criminal proceeding and Johnson provides no other argument for a substantive due process claim in his civil driver's license suspension case. Our Supreme Court has been clear that a person does not have a fundamental right to have a driver's license. "But once a person does possess a driver's license, that person has an interest in the license which the State cannot take away without providing procedural due process." Creecy, 310 Kan. at 466. We have already determined that Johnson was not denied procedural due process. Johnson does not claim that the statutory scheme for suspension of driver's licenses does not amount to a legitimate and substantial state interest, nor does he argue that it was applied here in an arbitrary or capricious manner. See Kansas Commission on Civil Rights, 216 Kan. at 318. Our Supreme Court has held that "compulsory testing for alcohol or drugs through driver's implied . . . consent does not violate the Constitution; it is reasonable in light of the State's compelling interest in safety on the public roads." Martin, 285 Kan. at 635. For these reasons, Johnson has not made a cognizable claim for a violation of his substantive due process rights in this case.

Affirmed. 450 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue

___

No. 119,514

ENRIQUE G. SANDATE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Subject Matter Jurisdiction—Vested by Statute and Constitution. Subject matter jurisdiction is vested by both statute and the Kansas Constitution and establishes the court's authority to decide a particular type of action.

2. SAME—Implied Consent Advisory—Officer's Failure to Give Advisory Does Not Deprive Court of Jurisdiction. Failure of the arresting officer's DC-27 submission to comply with K.S.A. 2019 Supp. 8-1002(a) does not deprive the KDOR or the courts of subject matter jurisdiction over the driver's license suspension action.

3. POLICE AND SHERIFFS—Implied Consent Advisory—Substantial Com- pliance by Officer. An officer substantially complies with K.S.A. 2016 Supp. 8-1001(k) when the officer reads an implied consent advisory to the driver that omits the items listed in subsections (k)(2) ("the opportunity to consent to or refuse a test is not a constitutional right") and (k)(4) (if the driver refuses the test, the officer may charge the driver with a separate crime for refusal).

4. SAME—Implied Consent Advisory—Substantial Compliance with Statute. Regardless of advising drivers that they are required to take a test of breath, blood, or urine if requested by police, K.S.A. 2016 Supp. 8-1001(k) makes it clear that testing under the implied consent laws is voluntary. Accord- ingly, providing the advisory as set out in K.S.A. 2016 Supp. 8-1001(k)(1) substantially complies with the implied consent statutory scheme.

Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed July 17, 2020. Affirmed.

Thomas J. Bath Jr., of Bath & Edmonds, P.A., of Overland Park, for appellant.

Donald J. Cooper, of Legal Services Bureau, Kansas Department of Reve- nue, for appellee.

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

ARNOLD-BURGER, C.J.: Enrique G. Sandate appeals the district court's decision affirming the administrative suspension of his VOL. 58 COURT OF APPEALS OF KANSAS 451

Sandate v. Kansas Dept. of Revenue driver's license. He makes two claims. First, he contends that the KDOR lacked subject matter jurisdiction to suspend his driver's license. Second, he asserts that the notice he received before refusing a breath test did not substantially comply with Kansas implied consent laws. After a review of Sandate's claims, we reject them and affirm the suspension of his driving privileges.

FACTUAL AND PROCEDURAL HISTORY

In the early morning hours on November 9, 2016, Officer Dane Jordan of the Overland Park Police Department witnessed a vehicle twice failing to maintain its lane and changing lanes without signaling. Officer Jordan initiated a traffic stop and ultimately arrested the driver, Sandate, because he admitted to consuming alcohol, showed signs of impairment, failed several field sobriety tests, and refused a preliminary breath test. Sandate refused to provide a breath sample after Officer Jor- dan read and provided a copy of the revised DC-70, an implied consent advisory form revised in February 2016 (revised DC-70). Paragraph 1 of the revised DC-70 provided: "Kansas Law [K.S.A. 2016 Supp. 8-1001] requires you to submit to and complete one or more tests of breath, blood, or urine to determine if you are under the influence of alcohol or drugs or both." Officer Jordan served Sandate with an "Officer's Certification and Notice of Sus- pension" (DC-27), which stated in paragraph 3 that "[t]he person was presented oral and written notice as required by [K.S.A. 2016 Supp. 8-1001(k)] and amendments thereto." Sandate requested an administrative hearing to review the suspension of his driving privileges. He made two arguments. First, he asserted that his constitutional rights were violated "when he was advised [on the revised DC-70] that he was required to submit to a test of breath, blood, or urine." Second, he contends that the revised DC-70 did not substantially comply with the notice requirements of K.S.A. 2016 Supp. 8-1001 because one of the statutory advisories was omitted. The KDOR affirmed the suspension. Next, Sandate petitioned for judicial review of the KDOR's decision, requesting a new hearing and reasserting the same arguments previously made at the administrative hearing. Sandate moved for summary judgment on these claims, also asserting that 452 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue the revised DC-70's noncompliance with K.S.A. 2016 Supp. 8- 1001 deprived the KDOR of jurisdiction to suspend his license. In its rulings, the district court found the KDOR had jurisdiction because the revised DC-70 substantially complied with K.S.A. 2016 Supp. 8-1001(k)(4) and denied Sandate's petition. The court found that "the amended DC-70 and [K.S.A. 2016 Supp. 8-1001(k)] with the unconstitutional portions stricken make it clear that petitioner has choice whether or not to submit to testing, even with the 'require' language present in [K.S.A. 2016 Supp. 8- 1001(k)(1)]." Ultimately, the matter proceeded to a hearing on stipulated facts, after which the court conclusively denied Sandate's petition for review, thus affirming the suspension of his driving privileges. Sandate timely appealed.

ANALYSIS

KDOR had subject matter jurisdiction to suspend Sandate's driver's license.

Sandate first argues the district court erred in concluding the KDOR had subject matter jurisdiction to suspend his license because Officer Jordan failed to provide all of the implied consent advisories in K.S.A. 2016 Supp. 8-1001(k). As a result, Sandate contends the DC-27 was not accurately certified and therefore the KDOR did not obtain subject matter jurisdiction to suspend his driving privileges. Sandate raises the issue of jurisdiction for the first time on appeal. But subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. Jahnke v. Blue Cross & Blue Shield of Kansas, 51 Kan. App. 2d 678, 686, 353 P.3d 455 (2015). Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015). To the extent that the issue requires this court to interpret Kansas statutes, it raises a question of law subject to unlimited review. Pratt v. Kansas Dept. of Revenue, 48 Kan. App. 2d 586, 588, 296 P.3d 1128 (2013). VOL. 58 COURT OF APPEALS OF KANSAS 453

Sandate v. Kansas Dept. of Revenue

Sandate mainly relies on Wall v. Kansas Dept. of Revenue, 54 Kan. App. 2d 512, 513-14, 401 P.3d 670 (2017), in which a panel of this court determined K.S.A. 2016 Supp. 8-1002(f) imposes upon the KDOR an "independent duty to examine" a certifying officer's DC-27 form "upon receipt," no matter if a driver requests an administrative hearing upon receiving a notice of suspension. This mandate implicates subject matter jurisdiction because "'[s]ubject matter jurisdiction is the power of the court to hear and decide a particular type of action.' State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985)." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016). In Wall, the certifying officer indicated a breath test failure on the DC-27, but the attached test results showed no sample was taken. In other words, the DC-27 erroneously reflected the driver had failed a breath test, but he had actually refused the test. In addition, the officer failed to mark several check boxes required for the DC-27 to comply with K.S.A. 2016 Supp. 8-1002(a). As a result, the panel concluded subject matter jurisdiction was lacking and affirmed the district court's reversal of the suspension. 54 Kan. App. 2d at 515. In another recent case, the DC-27 at issue lacked the certifying officer's initials, signature, and several check marks because the triplicate carbon copy form failed to transfer down to the copy given to the driver. Stutsman v. Kansas Dept. of Revenue, No. 119,528, 2019 WL 1303063, at *5 (Kan. App. 2019) (unpublished opinion). There, the panel determined the certification was not substantially compliant because the DC-27 given to the driver was missing that essential information, and thus the KDOR lacked jurisdiction to suspend his driving privileges. 2019 WL 1303063, at *4-5. The determinations made by the panels in these cases suggest that the statute only requires the KDOR to review the DC-27 at this early stage for easily discernable errors, like missing signa- tures or checkmarks and factual discrepancies. If those items are missing, KDOR is required to dismiss the action. Walls and Stutsman both hold that because KDOR is required to dismiss the action, its failure to do so leaves it without jurisdiction to conduct a requested administrative hearing. We disagree. 454 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue

Before addressing why we are holding contrary to two cases from this court, one published and one not, we begin by noting that one Kansas Court of Appeals panel is not bound by another panel's decision. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018). Each panel conducts an independent analysis of the issues presented and comes to its own conclusions. Subject matter jurisdiction is vested by statute and the Kansas Constitution and establishes the court's authority to decide a particular type of action. Dunn, 304 Kan. at 811; Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005). The KDOR has the authority to suspend driver's licenses and conduct administrative hearings regarding those suspensions. See K.S.A. 2019 Supp. 8-1002; K.S.A. 2019 Supp. 8-1020; K.S.A. 2019 Supp. 8-259. There are two primary components to the DC-27 form: a notification aspect and a certification aspect. The notification aspect arises under K.S.A. 2019 Supp. 8-1001(k) and contains information an officer must advise the driver of before administering an alcohol test. The certification aspect arises under K.S.A. 2019 Supp. 8-1002(a) and concerns matters occurring after the test failure or test refusal has already taken place. See Pratt, 48 Kan. App. 2d at 588-89. The DC-27 is the functional equivalent of a charging document. It gets the ball rolling on the suspension of driving privileges that accompany a DUI arrest. Without the filing of the DC- 27 with the KDOR, a driver's license suspension for an alcohol test refusal or failure does not happen. And just as the goal of a charging document is to inform the defendant of the alleged offense, so the DC-27 provides notice to the driver of the reasons for the suspension action and the evidence that supports it. See State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988) (purpose of complaint is to fairly apprises the defendant of the crime charged). The driver may challenge the sufficiency of the certification at the administrative hearing. K.S.A. 2019 Supp. 8-1020(h). The Kansas Supreme Court has held that charging documents do not bestow or confer subject matter jurisdiction. Dunn, 304 Kan. 773, Syl. ¶ 1. Likewise, defects in a complaint or indictment do not deprive a court of its power to adjudicate a case. See United VOL. 58 COURT OF APPEALS OF KANSAS 455

Sandate v. Kansas Dept. of Revenue

State v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). Even the failing to swear to or verify the complaint does not deprive the court of jurisdiction. State v. Graham, 247 Kan. 388, 394, 799 P.2d 1003 (1990). Like a complaint, once the DC-27 is filed with the KDOR, the KDOR and subsequent reviewing courts have subject matter jurisdiction over the driver's license suspension subject matter; and that makes sense. The KDOR and the courts have to have jurisdiction to make the decision regarding the adequacy of the DC- 27. Perhaps KDOR should have dismissed the case upon filing and should never have required the licensee to request and have an administrative hearing, but that can only be determined by an administrative or judicial officer's decision. An error in KDOR's decision does not impact its jurisdiction to make it. And the KDOR and the courts are not somehow deprived of that jurisdiction because the DC-27 was insufficient. In discussing subject matter jurisdiction over criminal complaints, the Supreme Court has noted that "even prejudicial deficiencies in due process or notice do not render the outcome of a prosecution void for lack of subject matter jurisdiction." Dunn, 304 Kan. at 814. Accordingly, we find that the KDOR had subject matter jurisdiction to suspend Sandate's driver's license. The question is whether it properly did so. We turn to that question next.

The district court did not err when it found that the revised DC-70 implied consent advisory substantially complied with the provisions of K.S.A. 2016 Supp. 8-1001.

Sandate's primary argument on appeal is that the revised DC- 70 did not substantially comply with Kansas implied consent laws, challenging the advisory in two respects: first, that it improperly advised him he was "required" to submit to testing; and second, that it omitted two of the subparts required by K.S.A. 2016 Supp. 8-1001(k). Generally, this court will review a district court's decision in an administrative driver's license suspension by "ascertaining whether substantial competent evidence in the record supported the district court's factual findings and whether the conclusion de- rived from those findings is legally correct." Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1213, 442 P.3d 1038 (2019). 456 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue

But where an issue involves statutory and constitutional interpretation, that presents a question of law subject to unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008), overruled on other grounds by City of Atwood v. Pi- analto, 301 Kan. 1008, 350 P.3d 1048 (2015).

Sandate has failed to properly preserve his challenge to the omission of K.S.A. 2016 Supp. 8-1001(k)(2).

To begin, part of Sandate's argument is not properly before this court based on a review of the record. There is no dispute that two subparts of K.S.A. 2016 Supp. 8-1001(k) were omitted from the revised DC-70 given to Sandate, specifically subparts (k)(2) ("the opportunity to consent to or refuse a test is not a constitutional right") and (k)(4) (if the driver refuses the test, the officer may charge the driver with a separate crime for refusal). But the pleadings available in the record reveal that Sandate only challenged the omission of subpart (k)(4). Likewise, the district court's rulings on this issue only mention the omission of subpart (k)(4). Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires appellants to explain why an issue not raised below should be considered for the first time on appeal. Parties who ignore Rule 6.02(a)(5) "risk a ruling that an issue improperly briefed will be deemed waived or abandoned." State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). In Williams, our Supreme Court warned that Rule 6.02(a)(5) will be strictly enforced. See 298 Kan. at 1085. Thus, because Sandate challenges the omission of K.S.A. 2016 Supp. 8-1001(k)(2) for the first time on appeal and offers no basis for why this court should consider an issue not raised before the district court, that argument is considered waived and abandoned.

The district court did not err when it found that, despite the omission of one statutorily mandated notice in the implied consent advisory, the officer substantially complied with the provisions of K.S.A. 2016 Supp. 8-1001.

VOL. 58 COURT OF APPEALS OF KANSAS 457

Sandate v. Kansas Dept. of Revenue

Under K.S.A. 2016 Supp. 8-1001(k), an arresting officer must provide a list of nine notices before administering a test of a person's blood, breath, urine, or other bodily substance to determine the presence of alcohol or other drugs in the driver's system. San- date challenges the omission of subpart (k)(4) in the revised DC- 70, which informs the driver of possible criminal penalties for refusing to submit a breath, blood, or urine test. See K.S.A. 2016 Supp. 8-1001(k)(4). This omission was prompted by two important decisions released by the Kansas Supreme Court February 2016, prompting the KDOR to begin using the revised DC-70 at the request of the Attorney General to incorporate the holdings. In State v. Ryce, 303 Kan. 899, 963-64, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II), the court held that the statute imposing criminal penalties on a driver if that individual withdrew consent or refused to submit to a breath test was facially unconstitutional. Then, in State v. Nece, 303 Kan. 888, 897, 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 giving unconstitutional implied consent advisories before a defendant's consent leads to coercion. The KDOR does not dispute that the revised DC-70 omitted certain provisions, explaining that their omission was "in direct response to the Kansas Supreme Court finding the statute on which it was based to be unconstitutional." Likewise, Sandate concedes the KDOR revised the DC-70 to accommodate these decisions. Nonetheless, Sandate asserts the invalidated provisions needed to be given to comply with K.S.A. 2016 Supp. 8-1001(k). This argument is unpersuasive because Kansas courts have never required strict compliance with the implied consent advisory statute, instead opting for substantial compliance. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 472, 447 P.3d 959 (2019) (citing Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 [1988]). "To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute." Barnhart, 243 Kan. at 213. The essentials, i.e., the purpose, of the implied consent advisories are to inform a driver of the law before his or her submission to a requested test and any potential consequences 458 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue that may result. Similarly, K.S.A. 2016 Supp. 8-1001(v) explicitly provides that "[t]his act is remedial law and shall be liberally construed to promote public health, safety and welfare." Accordingly, requiring a law enforcement officer to comply strictly by informing a driver about unconstitutional and unenforceable statutory provisions would subvert that purpose. Rather, an officer substantially complies with the statutory scheme by adhering to the most recent changes in the law, whether that change is strictly reflecting in the statute or not. Sandate tries to get around this by asserting that the unconstitutional advisories still applied to him and needed to be given because his breath test refusal occurred between the Kansas Supreme Court granting motions for rehearing of Ryce and Nece and the decisions reaffirming those rulings. In arguing that he should have been read the unconstitutional provisions, Sandate essentially asks the State to violate his constitutional rights. We do not promote that folly for a few reasons. First, when interpreting statutes, this court must seek to avoid absurd or unreasonable results. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). Requiring law enforcement officers to recite the unconstitutional portions would defeat the primary purpose of the statute and lead to drivers being misinformed about the law. This conclusion is supported even more by the severability clause in K.S.A. 8-1007:

"This act shall be construed as supplemental to existing legislation; and if any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section."

Second, the fact that this is a civil administrative proceeding arising from a breath test refusal is notable. In effect, the revised DC-70 advised Sandate that refusing to submit to testing would lead to a suspension of his driving privileges, which is consistent with the essentials of K.S.A. 2016 Supp. 8-1001(k). Sandate does not suggest, nor is there anything in the record to show, that the threat of criminal penalties would have affected his decision to refuse testing or that he was subjected to criminal penalties for VOL. 58 COURT OF APPEALS OF KANSAS 459

Sandate v. Kansas Dept. of Revenue refusal. See K.S.A. 2016 Supp. 8-1020(t); see also Martin, 285 Kan. at 642 (recognizing that "civil and criminal proceedings are wholly separate from one another and are intended to serve two different purposes"). In sum, the omitted subsection discussing criminal penalties for test refusal were invalidated by the Ryce and Nece decisions and thus is no longer an essential component of the statute. The district court correctly determined the revised DC-70 substantially complied with the statutory requirements despite the omission of K.S.A. 2016 Supp. 8-1001(k)(4).

The arresting officer did not invalidate Sandate's refusal to take the test by informing him, in compliance with K.S.A. 2016 Supp. 8-1001(k)(1), that he was "required" to submit to testing.

Sandate also challenges the paragraph of the revised DC-70 which advised him that "Kansas Law [K.S.A. 2016 Supp. 8- 1001(k)(1)] requires you to submit to and complete one or more tests of breath, blood, or urine to determine if you are under the influence of alcohol or drugs or both." He contends this is a misstatement of law, arguing that nothing in K.S.A. 2016 Supp. 8- 1001 requires drivers to submit to a test. In fact, the last question asked of a driver is "Will you take the test?" See K.S.A. 2016 Supp. 8-1001(m). The parties seem to agree that testing under the implied consent laws is voluntary but essentially disagree about the effect of the term "require" as used in K.S.A. 2016 Supp. 8-1001(k)(1), which provides:

"(k) Before a test or tests are administered under this section, the person shall be given oral and written notice that:

(1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both."

As the KDOR points out and the district court determined in its ruling on this issue, the revised DC-70 directly mirrors the statutory language. Sandate acknowledges the text of this provision but asserts he was inaccurately advised of the law and thus his suspension must be set aside. He claims subpart (k)(1) is itself incorrect because other sections require the officer to "request" the 460 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue person submit to a test after providing the advisory information. See K.S.A. 2016 Supp. 8-1001(b), (m). He cites as support Whigham v. Kansas Dept. of Revenue, No. 117,043, 2018 WL 1884742 (Kan. App. 2018) (unpublished opinion), petition for rev. granted 308 Kan. 1602 (2018). In that case, Whigham made the same argument as Sandate does now: that the use of "require" in the DC-70 advisories is a misstatement of law based on the use of "request" in other provisions of the statute. 2018 WL 1884742, at *3. Sandate also repeats Whigham's argument that the panel cannot overlook the Legisla- ture's choice to switch from directory language to mandatory language when considering legislative intent. See 2018 WL 1884742, at *4; Walker v. Brizendine, No. 114,776, 2016 WL 5012505, at *2-3 (Kan. App. 2016) (unpublished opinion). The panel in Whigham then considered the definitions of "require" and other forms of that term, noting while "the term required can be read to mean something similar to a request," that the definitions provided by the KDOR as support "mostly include definitions that insinuate something mandatory." 2018 WL 1884742, at *5. In contrast, the panel discussed the proposed amendments for the 2018 legislative amendments swapping "'requires'" for "'allows,'" calling the substituted language "comparatively a more directional term rather than a mandatory term, suggesting the original use of required was intended as a mandatory term." 2018 WL 1884742, at *5-6. Ultimately, the panel concluded Whigham's argument about legislative intent was more persuasive but was "foreclosed" by the arresting officer's "good- faith reliance on the advisories." 2018 WL 1884742, at *6. In response, the KDOR contends interpreting "required" as a mandatory term "would insert more ambiguity in the interpretation of the statute" because the statute consistently allows a driver to refuse a test. The KDOR focuses on the use of "required" in context, asserting the other provisions of the revised DC-70 must be considered because they make it clear that a driver ultimately gets to choose whether to refuse a test. Sandate also points out the panel's reliance on the good-faith exception to the exclusionary rule is "curious" given the panel's reluctance to apply the exclusionary rule when determining VOL. 58 COURT OF APPEALS OF KANSAS 461

Sandate v. Kansas Dept. of Revenue whether the results of Whigham's failed breath should have been suppressed. See Martin, 285 Kan. at 646 (holding that exclusionary rule does not apply in the context of administrative driver's license suspension cases); but see Jarvis v. Kansas Dept. of Reve- nue, 56 Kan. App. 2d 1081, 1096, 442 P.3d 1054 (2019) (discussing 2016 statutory amendment that allows courts to consider a "constitutional issue" like "the lawfulness of the law enforcement encounter" in such cases), rev. granted 310 Kan. 1062 (2019). That said, this court is not bound by the panel's reasoning in Whigham. See Fleming, 308 Kan. at 706 (one Kansas Court of Appeals panel is not bound by another panel's decision). And we adopt a different interpretation; one more aligned with that pro- pounded by KDOR. We are asked to determine whether a warning given under K.S.A. 2016 Supp. 8-1001(k)(1) substantially complies with the statutory scheme of implied consent law as set out in K.S.A. 8- 1001 et seq. The advisory given here was presented in the language of (k)(1), so it explicitly complied with (k)(1). Instead, San- date argues that the advisory is a misstatement of the law and, as such, it did not substantially comply with the statutory scheme of implied consent law. Because there was not substantial compliance, he argues he is not required to show he was prejudiced by the statement. See Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 682, 840 P.2d 448 (1992). First, we agree that under the plain language of the statute, advising a driver that he or she is required to submit to and complete a requested test is a misstatement of the law. See Ryce II, 306 Kan. at 695 ("Significantly, while the statutory implied consent advisory informs the driver he or she is required to take a blood alcohol test or face consequences, . . . an officer can only 'request' that a driver submit to a test."). Although a driver is "deemed to have consented," the driver is not required to consent. See K.S.A. 2016 Supp. 8-1001(a) ("Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this article," to submit to a breath, blood, or urine test.). But just as the statute provides that the driver is deemed to have given consent, that consent is "subject to the provisions" of the statute. K.S.A. 2016 Supp. 8-1001(a). And the implied consent advisory goes on to discuss the consequences of 462 COURT OF APPEALS OF KANSAS VOL. 58

Sandate v. Kansas Dept. of Revenue refusal of an officer's test "request." K.S.A. 2016 Supp. 8- 1001(k)(4), (5), (7). Rather than isolating a particular provision, we must examine the statutory scheme, considering "various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible." State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710 P.2d 25 (1985) ("To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible."). "[W]ords are given meaning by their context." Scalia and Garner, Reading Law: The Interpretation of Legal Texts, p. 56 (2012). Accordingly, K.S.A. 2016 Supp. 8-1001(k)(1) should not be read in isolation. As the district court noted below and the parties agree, the other provisions of K.S.A. 2016 Supp. 8-1001 make it clear that testing under the implied consent laws is voluntary. In fact, the meaning of "requires" is limited by paragraphs 3 and 8 of the revised DC-70. "If you refuse" your driving privileges will be suspended and "if you refuse" your refusal may be used against you at trial. See K.S.A. 2016 Supp. 8-1001(k)(3), (7). And most telling is the last provision, "Will you take a test?" These provisions, when read together, clarify that a person may refuse the test, but there are consequences to that refusal. The statute consistently directs law enforcement officers to "request a person to submit to a test." See K.S.A. 2016 Supp. 8- 1001(b), (c), (h), (i), (m). Likewise, officers are required to read the implied consent advisories on the DC-70—disregarding the provisions invalidated as unconstitutional, as discussed—which reference the driver's ability to refuse testing and potential consequences of test refusal or failure. See K.S.A. 2016 Supp. 8- 1001(k)(5)-(9). Reading these provisions as a whole, a reasonable person would conclude that he or she retains the right to refuse testing. In fact, the DC-70 explicitly gives the driver a choice at its conclusion whether to refuse testing. So, while read in isolation K.S.A. 2016 Supp. 8-1001(k)(1) may be a misstatement of the law, when read in context with the rest of subsection (k) its meaning is clarified. VOL. 58 COURT OF APPEALS OF KANSAS 463

Sandate v. Kansas Dept. of Revenue

Moreover, Sandate's actions bolster this interpretation. The language did not coerce Sandate into taking the test. He refused the requested test. He clearly understood the language to mean he could refuse. This is not a case like Meigs upon which Sandate relies. In Meigs, the officer advised Meigs that if he refused the test his license would be suspended for 180 days. But this was an old advisory. The statute had changed to require suspension for at least a year. Meigs refused the test. The Supreme Court found that the officer had not substantially complied with the statute because the statute required that he advise Meigs that his license would be suspended for at least a year—double the amount of time he told Meigs. Meigs was not required to show prejudice when there was not substantial compliance with the statutory language required. Meigs, 251 Kan. at 682. Here the officer complied with the legislative mandate by reading the advisories to Sandate exactly as they are set out in the statute. The officer was required by statute to provide the implied consent advisories. He did. Sandate refused the requested test. Those advisories, when read in total, substantially comply with the statute. That was all that was necessary to suspend Sandate's driver's license. For these reasons, we find the district court did not err by determining the revised DC-70 provided to Sandate substantially complied with Kansas implied consent laws. First, the omitted subsection referencing criminal penalties for test refusal was invalidated by Kansas Supreme Court decisions and therefore not essential. Likewise, including the invalidated provision in the revised DC-70 would have been an inaccurate statement of the law. Second, the use of the term "requires" in the first sentence of the revised DC-70 mirrors the statutory language, which when read in context makes it clear that a driver's choice to submit to testing under the implied consent framework is voluntary.

Affirmed. 464 COURT OF APPEALS OF KANSAS VOL. 58

City of Colby v. Foster

___

No. 121,373

CITY OF COLBY, Appellee, v. SCOT FOSTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Law in Effect at Time of Criminal Act. Typically, the law in effect at the time of the criminal act controls.

2. SAME--Implied Consent Advisories—Required for Breath Test Results to Be Admitted Into Evidence before July 1, 2018.. In order for breath tests obtained prior to July 1, 2018, to be admitted into evidence in a criminal trial, the person arrested was required to be notified of their statutory rights under K.S.A. 2017 Supp. 8-1001. Failure to do so requires the court to suppress the breath test results.

3. SAME—Implied Consent Advisories Not Given—Breath Test Results Ad- mitted Into Evidence Valid After July 1, 2018. Breath tests may be administered as a search incident to lawful arrest for drunk driving. After July 1, 2018, breath tests administered incident to an arrest can be admitted into evidence in a criminal trial regardless of whether the officer complied with the implied consent law.

Appeal from Thomas District Court; KEVEN BERENS, judge. Opinion filed July 17, 2020. Reversed and remanded.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Heather F. Alwin, of Alwin Legal Services, of Colby, for appellee City of Colby.

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

ARNOLD-BURGER, C.J.: Scot Foster was arrested on suspicion of driving under the influence of alcohol. Law enforcement administered a breath-alcohol test on Foster before providing him with the implied consent notices located in K.S.A. 2017 Supp. 8- 1001. At the district court, Foster moved to suppress the evidence of the breath test, in part, because of the lack of notice. The district court denied Foster's motion and he was found guilty of driving under the influence. Because we find that at the time of Foster's arrest officers were statutorily required to give him the implied consent advisories prior to requesting a breath test, regardless of VOL. 58 COURT OF APPEALS OF KANSAS 465

City of Colby v. Foster whether a warrant is later obtained, the test results should have been suppressed. Therefore, we reverse and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Foster pled guilty in the City of Colby (City) municipal court to driving under the influence (DUI) and transporting an alcoholic beverage. After being sentenced by the municipal court, Foster appealed to the district court for a trial de novo. Prior to trial at the district court, Foster moved to suppress the evidence, including the breathalyzer results. At a hearing on the motion, Foster's attorney discovered that Officer Steven Nelson administered a breath test on Foster before providing him with implied consent advisories. Foster's attorney orally amended his motion and argued the evidence should be suppressed because the implied consent advisories were administered after the breath test was administered. In a written order, the district court denied Foster's motion to suppress. Relevant to this appeal, the district court held that the officer was not required to provide the implied consent advisories. The court applied an amendment to K.S.A. 8-1001, effective July 1, 2018, to reach its conclusion. The amendment stated: "Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant or other judicially recognized exception to the warrant requirement." K.S.A. 2018 Supp. 8-1001(s). The court reasoned that Foster's breath sample was taken as a search incident to arrest—a judicially recognized exception to the warrant requirement. After Foster's motion was denied, he stipulated to the facts and waived his right to a jury trial, instead opting for a bench trial. Foster stipulated:

"1. On May 6, 2018 at approximately 0154 hours Officer Steve Nelson of the Colby Police Department conducted a traffic stop in the 600 block of North Franklin, Colby, KS after the defendant ran a red light.

"2. After stopping defendant's vehicle the officer noticed indications of alcohol consumption and possible impairment and began a DUI investigation.

466 COURT OF APPEALS OF KANSAS VOL. 58

City of Colby v. Foster

"3. At the conclusion of the DUI investigation the officer determined probable cause existed to arrest defendant for driving under the influence of alcohol and placed him under arrest.

"4. At the Thomas County Jail defendant was provided with his Implied Consent Advisories both orally and in writing after obtaining an evidentiary breath test.

"5. The Implied Consent Advisories used by the officer on this date were the most recent one available to the officer and were issued and noted as revision date February 26, 2016. The deputy properly followed the KDHE protocol for breath testing and administered the Intoxilyzer 9000 at 0251 hours on May 6, 2018, within three (3) hours of the last time defendant operated a motor vehicle in Thomas County, Kansas, with the Intoxilyzer 9000 indicating a test result of 0.236 grams of alcohol per 210 liters of breath at 0316 hours.

"6. The parties stipulate and agree that the court in making its determination of guilt or innocence may also review the testimony and exhibits presented during the motion to suppress hearing previously conducted before the court, subject to the defendant's contemporaneous objection to preserve his appeal of the issues raised in his motion to suppress."

At the hearing on the motion to suppress, Officer Nelson testified that Foster told the officers as he was undergoing the field sobriety testing that they should "just . . . take him in for a test to see where it comes out." After he had been arrested, the officer offered to perform the breath test. Regardless, the additional testimony presented during the motion to suppress hearing showed Nelson did not provide Foster the implied consent advisories until after administering a breath test using the Intoxilyzer 9000. At trial, the City dismissed the transportation of an alcoholic beverage charge. The district court found Foster guilty of DUI. Foster timely appealed to this court.

ANALYSIS

On appeal, Foster's only argument is that the district court erred by denying his motion to suppress because Officer Nelson administered the evidentiary breath test before providing the implied consent advisories. When the material facts supporting a district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which VOL. 58 COURT OF APPEALS OF KANSAS 467

City of Colby v. Foster an appellate court has unlimited review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). Foster's argument centers on the version of K.S.A. 8-1001 in place at the time of his arrest—May 6, 2018. Under K.S.A. 2017 Supp. 8-1001(a), "[a]ny person who operates or attempts to operate a vehicle within [Kansas] is deemed to have given consent . . . to submit to one or more tests of the person's blood [or] breath . . . to determine the presence of alcohol and drugs." This implied consent allows law enforcement officers to request that an individual suspected of driving under the influence of alcohol or drugs submit to a test to determine whether the person is driving under the influence. See K.S.A. 2017 Supp. 8-1001(b). When a law enforcement officer requests that an individual submit to testing under this section, the officer is required to provide certain notices. Specifically the statute requires that "[b]efore a test or tests are administered under this section, the person shall be given oral and written notice that . . . ." K.S.A. 2017 Supp. 8- 1001(k). The statute then lists several provisions that the individual must be notified of, including notice that "the opportunity to consent to or refuse a test is not a constitutional right" and "there is no constitutional right to consult with an attorney regarding whether to submit to testing." K.S.A. 2017 Supp. 8-1001(k)(2)- (3). The statute also provides that "[i]t shall not be a defense that the person did not understand the written or oral notice required by this section." (Emphasis added.) K.S.A. 2017 Supp. 8-1001(r). To bolster his argument, Foster relies on State v. Luft, 248 Kan. 911, Syl. ¶¶ 1-2, 811 P.2d 873 (1991), where the Kansas Su- preme Court held that implied consent notice provisions found in K.S.A. 1990 Supp. 8-1001 were "mandatory and not merely directory" and that the "[f]ailure to inform the accused of the notice provisions of K.S.A. 1990 Supp. 8-1001(f) requires suppression of the results of the blood alcohol tests administered by the State." In Luft, the defendant was arrested after a one-vehicle accident. A blood-alcohol test was administered and later admitted into evidence. However, the State conceded that "Luft was not advised of his statutory rights pursuant to K.S.A. 1990 Supp. 8- 1001(f)." 248 Kan. at 912. Luft was convicted and appealed, arguing that the result of his blood-alcohol test should be suppressed 468 COURT OF APPEALS OF KANSAS VOL. 58

City of Colby v. Foster because he was not advised of his statutory rights. Under K.S.A. 1990 Supp. 8-1001(f)(1), Luft should have been notified that

"(A) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both; "(B) the opportunity to consent to or refuse a test is not a constitutional right; "(C) there is no constitutional right to consult with an attorney regarding whether to submit to testing" and several other provisions. The Kansas Supreme Court reversed Luft's conviction, holding that the evidence of his blood-alcohol test should have been suppressed. The court reasoned that "'[t]he clear language of the statute indicates that the legislature intended to ensure that a person arrested for driving under the influence was made aware, by the required notice procedure, of his statutory rights.'" 248 Kan. at 912 (quoting Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212, 755 P.2d 1337 [1988]). As further support of legislative intent, the court pointed to the language stating: "'It shall not be a defense to any prosecution [for driving under the influence] . . . that the person did not understand the written or oral notice required by this section.'" 248 Kan. at 912 (quoting Barnhart, 243 Kan. at 212 [quoting K.S.A. 1985 Supp. 8-1001(f)(2)]). The court then went on to emphasize that the proper remedy for a violation of 8-1001 is to suppress the result of the administered test. 248 Kan. at 913. In this case, the district court noted that the statute in question was recently amended and that the Kansas Supreme Court had recently issued opinions in DUI cases causing the district court to "question[] the significance of the Luft case, because implied consent is not the issue." The City argues that the 2018 amendment to K.S.A. 8-1001 should control because it "was the version in effect at the time of the suppression hearing." That statute provides that nothing in the implied consent law shall be construed to limit the right of a law enforcement officer to conduct any search of a person's breath incident to a lawful arrest under the United States Constitution "with or without providing" the implied consent advisories. K.S.A. 2018 Supp. 8-1001(e). The City provides no VOL. 58 COURT OF APPEALS OF KANSAS 469

City of Colby v. Foster caselaw supporting its argument that the 2018 version of the statute applies here. Contrary to the City's assertion, typically, the law in effect at the time of the criminal act controls. See State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018); Norris v. Kansas Employment Security Bd. of Review, 303 Kan. 834, 841, 367 P.3d 1252 (2016). Foster committed the crime in May 2018, before the 2018 amendment to K.S.A. 8-1001 went into effect on July 1, 2018. The law in effect at the time—requiring notice of statutory rights—would have controlled throughout Foster's case. See K.S.A. 2017 Supp. 8-1001(k); Rice, 308 Kan. at 1512; Luft, 248 Kan. at 912-13. The City raises several additional arguments to support its contention that the district court did not err. Specifically, the City argues: (1) Foster consented to the breath test before he was even arrested, (2) the breath test was a valid search incident to arrest, (3) implied consent advisories are not required for a prosecution for DUI, and (4) Foster was not prejudiced and that the officer substantially complied with the law.

Consent to search

The City's argument that the result of the breath test should not be suppressed because Foster consented to the search—or perhaps even initially requested the breath test—is unpersuasive. Be- cause the district court concluded the incorrect statute governed this case, its decision did not turn on consent. Rather, the court found that although Foster might have consented to the test, that did not matter because the breath test was permissible as a search incident to an arrest. But though an individual can consent to a search, the consent must be made voluntarily, intelligently, and knowingly. State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). In order for Foster to intelligently and knowingly give his consent to the search, he would necessarily have to be informed of his statutory rights under K.S.A. 2017 Supp. 8-1001(k). Because he was not informed of those rights, his consent could not have been intelligently and knowingly given. See Jones, 279 Kan. at 77. There- fore, Foster did not consent to the search.

470 COURT OF APPEALS OF KANSAS VOL. 58

City of Colby v. Foster

Search incident to arrest

The district court also relied on the Kansas Supreme Court's decision in State v. Ryce, 306 Kan. 682, 693, 396 P.3d 711 (2017) (quoting Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 [2016]), where the Court recognized that a "'breath test, but not a blood test, may be administered as a search incident to lawful arrest for drunk driving.'" On appeal, the City argues the district court was correct because the breath test was a valid search incident to arrest, separate and distinct from the implied consent statutory scheme. The Fourth Amendment to the United States Constitution prohibits unreasonable searches. Blood and breath tests conducted by police are searches. See Birchfield, 136 S. Ct. at 2173; Ryce, 306 Kan. at 684. Section 15 of the Kansas Constitution Bill of Rights provides the same protections against unreasonable searches as the United States Constitution. State v. Henning, 289 Kan. 136, 145, 209 P.3d 711 (2009). Warrantless searches are per se unreasonable unless the search falls within one of the exceptions to the search warrant requirement. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Relevant to this case is the search incident to lawful arrest exception. The United States Supreme Court has held that warrantless breath tests are permissible after an individual is arrested for drunk driving. Birchfield, 136 S. Ct. at 2184-85. This court has addressed this issue in a case similar to the one here. In State v. Perkins, 55 Kan. App. 2d 372, 379, 415 P.3d 460 (2018) (quoting Ryce, 306 Kan. at 690-91), this court acknowledged that "the search-incident-to-arrest exception is a 'categorical exception to the warrant requirement permitting an officer to demand a breath test from a person arrested for a DUI violation.'" In Perkins, the defendant was arrested for driving under the influence before the officer administered an evidentiary breath test. Because an exception to the search warrant requirement—search incident to arrest—was applicable, the court held the results of the search did not need to be suppressed. 55 Kan. App. 2d. at 380. However, two things should be noted. First, the defendant in Perkins was provided with the statutory notices set out in K.S.A. 2012 Supp. 8-1001. Second, the Kansas Supreme Court affirmed the Court of VOL. 58 COURT OF APPEALS OF KANSAS 471

City of Colby v. Foster

Appeals in State v. Perkins, 310 Kan. 764, 771, 449 P.3d 756 (2019), but the court did so without addressing the search incident to arrest argument and analysis. The question here is: Does the fact that Foster did not receive the statutory notices before the breath test was administered change the outcome of his case? It does. The Kansas Supreme Court made it clear in Luft that K.S.A. 1990 Supp. 8-1001(f)— which is substantially similar to K.S.A. 2017 Supp. 8-1001(k)— requires that the statutory notices be provided to an individual when a law enforcement officer seeks to test their breath alcohol content. Luft, 248 Kan. at 913. Perhaps Foster's breath test would pass muster under the search incident to arrest standard, but Kan- sas law required more. Kansas may impose more stringent requirements than the United States Constitution. When the state chooses to do so, the statute controls. State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015). We are bound to follow the Luft and James decisions. This court is duty-bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). We have seen no indication of the Su- preme Court departing from Luft. Because Nelson was required—by statute—to provide Foster the implied consent notices and did not do so, the search incident to arrest exception to the warrant requirement does not mean the breath test submitted by Foster was admissible.

Prior to July 1, 2018, implied consent advisories are required before prosecution for DUI.

The City next argues that implied consent advisories were not required in this case because this is a prosecution for DUI, not a driver's license hearing. This argument is also unpersuasive. In Luft, a criminal case, the defendant was convicted of aggravated vehicular homicide—something wholly unrelated to a driver's license hearing. The Kansas Supreme Court still held that the implied consent advisories were required. 248 Kan. at 913; see also State v. Kogler, 38 Kan. App. 2d 159, 164. 163 P.3d 330 (2007) (suppression required when outdated advisory given); State v. 472 COURT OF APPEALS OF KANSAS VOL. 58

City of Colby v. Foster

Kelly, 14 Kan. App. 2d 182, 191, 786 P.2d 623 (1990) (suppression required when defendant denied right to consult with attorney as provided in K.S.A. 1987 Supp. 8-1001[f][1][E]). In this case, the City provides no support for its argument that the implied consent advisories were not required because this is not a driver's license suspension. Here, Nelson was required to provide the implied consent advisories, even though this case was for the prosecution of DUI.

Officer Nelson did not substantially comply with the statute.

Finally, the City argues that Foster was not prejudiced by not receiving the implied consent notices before taking the breath test and that, ultimately, Nelson substantially complied with the statute by providing Foster the implied consent advisories after the breath test was administered. As to prejudice, the City argues that Foster consented to the test, and in fact requested testing, before he was arrested. This is essentially the same argument discussed above and it remains un- convincing. Foster was not given all the information required, thus he could not intelligently and knowingly consent to the breath test. The City also argues that Nelson substantially complied with K.S.A. 2017 Supp. 8-1001 by providing the implied consent advisories after administering the breath test. Kansas courts have recognized that substantial compliance to K.S.A. 8-1001 can allow breath test results to be admitted as evidence, but only in certain circumstances. State v. Shaw, 37 Kan. App. 2d 485, 492-93, 154 P.3d 524 (2007). In Shaw, the defendant took a breath test without first being advised of the implied consent advisories. The officer who administered the first test realized that he did not provide Shaw the notices and asked him if he would submit to a second breath test. Shaw agreed and the officer provided the implied consent notices. Shaw then took a second breath test and the results of that test were then used against him at trial. This court held that the second test was admissible because the officer substantially complied with K.S.A. 8-1001 by providing the implied consent advisories to Shaw and then administering a second test. The court focused on the clear language of K.S.A. 8-1001 which requires notice to be given "'[b]efore a test or tests VOL. 58 COURT OF APPEALS OF KANSAS 473

City of Colby v. Foster are administered.'" 37 Kan. App. 2d at 492 (quoting K.S.A. 8- 1001[f]). The statute in effect at the time Foster was arrested required the same thing. See K.S.A. 2017 Supp. 8-1001(k). Nelson did not provide the implied consent advisories before administering the test, nor did he provide the advisories and then test Foster a second time. Officer Nelson did not substantially comply with the requirements of K.S.A. 2017 Supp. 8-1001(k). When there has not been substantial compliance, a driver does not have to show prejudice. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, Syl. ¶ 4, 840 P.2d 448 (1992). Ultimately, the district court erred by denying Foster's motion to suppress. Officer Nelson was required to provide Foster with the implied consent advisories before administering the breath test and did not do so. See K.S.A. 2017 Supp. 8-1001(k). The proper remedy for not doing so was to suppress the breath test evidence. See Luft, 248 Kan. at 913.

Reversed and remanded for further proceedings. 474 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

___

No. 120,993

STATE OF KANSAS, Appellee, v. TYLER WAYNE LYON, Appellant.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Due Process Claim—Determination of Due Process Violation. When reviewing a due process claim, courts first determine whether a protected liberty or property interest is involved. If a protected interest is implicated, the court must determine the nature and extent of the process that is due. But a due process violation exists only if the complaining party shows that he or she was denied a specific procedural protection to which he or she is entitled.

2. CRIMINAL LAW—Sentencing—Probation—Statutory Protections Satisfy Due Process Requirements. Although a district court's decision to impose probation is an act of grace subject to judicial discretion, once granted probation, the probationer acquires a conditional liberty interest subject to substantive and procedural due process limits on its revocation. The protections contained in K.S.A. 2018 Supp. 22-3716 satisfy all constitutional due process requirements necessary in probation revocation proceedings.

3. SAME—Sentencing—Classification of Defendant's Criminal History. When calculating a defendant's criminal history, a sentencing court considers the person's prior Kansas and out-of-state convictions and classifies each conviction as a person or nonperson offense.

4. SAME—Sentencing--Classification of Prior Out of State Offense or Pre- KSGA Kansas Crime. For an out-of-state offense or Kansas crime committed before implementation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., to be comparable to a current offense under the Kansas criminal code, within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3) and K.S.A. 2017 Supp. 21-6810(d), the earlier crime's elements cannot be broader than the elements of the current Kansas crime that is being considered. As a result, a prior out-of-state offense or pre- KSGA crime must have elements identical to or narrower than a current Kansas person crime to be scored as a person offense for criminal history purposes.

5. SAME—Sentencing—Classification of Prior Out of State Offense or Post- KSGA Kansas Crime. A defendant's prior Kansas crime committed post- implementation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., may be scored as a person offense for criminal history purposes even if the elements of the prior version of the offense are VOL. 58 COURT OF APPEALS OF KANSAS 475

State v. Lyon

broader than the elements of the current version of the crime. When the statute under which the prior post-KSGA conviction was committed is still in effect, the KSGA simply points the sentencing court to that statute to determine how to designate the prior conviction.

6. SAME—Sentencing—Classification of Prior Conviction of Crime if Statute Repealed. K.S.A. 2017 Supp. 21-6810(d)(8), which provides that "[p]rior convictions of a crime defined by a statute that has since been repealed shall be scored using the classification assigned at the time of such conviction," may apply only when classifying prior Kansas crimes committed post-implementation of the Kansas Sentencing Guidelines Act, K.S.A. 2019 Supp. 21-6801 et seq.

7. SAME—Sentencing—Classification of Prior Conviction of Crime Commit- ted Post-KSGA. A Kansas crime committed post-implementation of the Kansas Sentencing Guidelines Act, K.S.A. 2019 Supp. 21-6801 et seq., is properly scored as a person offense if the crime was classified as a person offense when it was committed and when the current crime of conviction was committed even if the prior version of the earlier crime's elements are broader than the elements of the current version.

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed July 24, 2020. Affirmed.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

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

Before BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, Dis- trict Judge, assigned.

CHAMBERS, J.: Tyler Wayne Lyon appeals the revocation of his probation and his sentence. The first issue is straightforward. Were Lyon's due process rights violated when the district court found he violated the terms of his probation by committing the crime of domestic battery when the State alleged he committed the crime of aggravated battery? The second issue enters us into the labyrinth of classification of prior crimes under the Kansas Sentencing Guidelines Act. Did the district court err by classifying his 2010 Kansas aggravated burglary conviction as a person felony when calculating his criminal history score? For the reasons set out below, we affirm the district court on both issues.

476 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2017, Lyon got into an argument with his brother in the presence of Lyon's girlfriend, their two-year-old son, and a friend. The argument escalated when Lyon went into his bedroom and retrieved a handgun. Lyon pointed the gun at his brother who pushed the gun away. Lyon then began striking his brother with the gun. The gun discharged with the bullet passing through the brother's shoulder and striking the friend in the leg. Lyon was arrested and charged with multiple crimes as a result of the incident. Pursuant to a plea agreement entered with the prosecution, Lyon pled guilty to two counts of aggravated battery and one count of criminal possession of a firearm. Lyon pled no contest to an additional charge of endangerment of a person. The district court accepted the pleas, and Lyon was found guilty of the four crimes. A presentence investigation (PSI) report calculated Lyon's criminal history score as C, determined in part on a 2010 Kansas aggravated burglary conviction being classified as a person felony. Based upon his criminal history and crimes of conviction, Lyon's sentence was presumptive prison under the Kansas Sen- tencing Guidelines Act (KSGA). At sentencing, the parties agreed that Lyon's criminal history score was C in accordance with the PSI report. Following the terms of the plea agreement of the parties, the district court granted Lyon a dispositional departure placing him on probation for a period of 36 months from an underlying prison sentence of 94 months. The district court noted that Lyon received "one heck of a plea agreement . . . usually people who commit these kinds of acts . . . end up in prison." Conditions of Lyon's probation included prohibitions against breaking any laws and from consuming alcohol. Approximately four months following sentencing, a warrant was issued alleging Lyon violated the conditions of his probation by disobeying a law and consuming alcohol. Specifically, the warrant alleged Lyon "committed the offense of Aggravated Bat- tery/Domestic Violence" and "consumed alcohol" as alleged in a police report. Lyon contested the allegations. VOL. 58 COURT OF APPEALS OF KANSAS 477

State v. Lyon

The district court held an evidentiary hearing on the alleged probation violations. Lyon's now ex-girlfriend, C.D., testified she and Lyon got into an argument because she suspected he was talking to another woman. C.D. testified she threatened Lyon with a belt and tried pushing him so she could leave the room. C.D. indicated some difficulty in remembering the events that took place, but she believed Lyon either grabbed or pushed her around the neck and chest area causing her to fall. C.D. lost consciousness and sustained a laceration to the back of her head. While C.D. did not see Lyon drink alcohol that day, she saw a beer can lying on the counter or table next to the couch and presumed it belonged to Lyon. Lyon testified in his defense admitting he pushed C.D. Lyon testified in the course of the argument C.D. was following him around the house and shoving him. While in the kitchen, Lyon claimed he pushed C.D. because he thought she was going to hit him or grab a knife. According to Lyon, C.D. tripped and fell over a rug when he pushed her. Lyon also admitted drinking a beer that day. In closing argument, Lyon admitted to the consumption of alcohol but argued his actions against C.D. were justified as self- defense and the evidence failed to establish aggravated battery as alleged in the probation violation warrant. The district court found Lyon had pushed C.D. to the ground and, as a result of the push, C.D. suffered head injuries. The judge noted the size discrepancies of the parties. C.D. is 5 feet, 2 inches tall and weighed about 135 pounds. Lyon is 6 feet 2 inches tall and weighed about 305 pounds. Utilizing his ability to judge the credibility of the witnesses, the judge determined Lyon's use of force was not justified as self-defense. After reading the definition of domestic battery as set out in K.S.A. 2018 Supp. 21-5414(a), the trial judge found that Lyon had committed the offense of domestic battery under both subsection (a)(1) and subsection (a)(2) of the statute. As a result, the district court ruled Lyon had violated the terms of his probation by vio- lating a law and consuming alcohol. The trial judge specifically found an aggravated battery had not been committed, but rather the misdemeanor offense of domestic battery had been committed. The district court considered intermediate sanctions but determined they would be inappropriate considering the previously 478 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon granted departure sentence and the commission of a new crime involving violence. Lyon's probation was revoked, and the underlying sentence ordered executed.

Lyon appeals.

REVOCATION OF PROBATION

Lyon first contends the district court erred in revoking his probation when it found that he violated the terms of his probation by committing the new crime of domestic battery. Lyon claims this finding violated his due process rights because the State failed to allege that he committed a domestic battery in the probation violation warrant. A district court's decision to revoke probation involves two steps: (1) a factual determination that the probationer has violated a condition of probation; and (2) a discretionary determination as to whether the proved violation warrants revocation of probation. State v. Skolaut, 286 Kan. 219, 227-29, 182 P.3d 1231 (2008). The State must establish a probation violation by a preponderance of the evidence. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). We review the district court's factual finding that a violation occurred for substantial competent evidence. Inkelaar, Kan. App. 2d at 315-16. Once a probation violation has been established, the decision to revoke probation rests within the district court's discretion. State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016). When determining whether a district court complied with due process requirements in revoking a defendant's probation, we apply an unlimited standard of review. 303 Kan. at 580. When reviewing a due process claim, we first determine whether a protected liberty or property interest is involved. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 331, 291 P.3d 1056 (2013). While the decision to impose probation is an act of grace, once a defendant is granted probation, "he or she acquires a conditional liberty interest which is subject to substantive and procedural due process limits on its revocation." Hurley, 303 Kan. at 581. Since a protected interest is implicated, we must determine the nature and extent of the process that is due. Village Villa, 296 Kan. at 331. VOL. 58 COURT OF APPEALS OF KANSAS 479

State v. Lyon

Due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016). A due process violation exists only if the complaining party shows that he or she was denied a specific procedural protection to which he or she is entitled. See In re K.E., 294 Kan. 17, 22, 272 P.3d 28 (2012). The basic elements of procedural due process are notice and "the opportunity to be heard at a meaningful time and in a meaningful manner." Ellison, 305 Kan. at 526. "To satisfy due process, notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of an action and to afford the parties an opportunity to present any objections." Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212, 1215, 135 P.3d 1203 (2006). The revocation of a defendant's probation is not part of a criminal prosecution and, therefore, the full panoply of rights in a criminal case is not applicable to a probation revocation proceeding. State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), established minimum due process rights for parolees and later extended those rights to probationers in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). These due process rights include written notice of the claimed probation violations and disclosure of the evidence against the probationer. Hurley, 303 Kan. at 582. Our Supreme Court has held that the statute governing probation revocations—K.S.A. 22-3716—satisfies all constitutional requirements necessary in probation revocation proceedings. State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077 (1975). Under K.S.A. 2018 Supp. 22-3716(b)(1), Lyon's intensive supervision officer (ISO) was required to "submit in writing a report showing in what manner the defendant has violated the conditions" of his probation. In this case, Lyon's ISO submitted a warrant specifying that Lyon violated the condition of his probation requiring that he "obey the laws of the United States, the State of Kansas and any other jurisdiction to whose laws he may be subject." The warrant continued that this condition was violated when 480 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

"[o]n or about October 18, 2018, the defendant committed the offense of aggravated battery/domestic violence as alleged in Wich- ita Police Department Incident Report 18C068588." Lyon argues the district court violated his right to due process by finding he committed domestic battery because the warrant alleged that he committed a different crime of aggravated battery. Lyon asserts that under the rule of lenity, the warrant's assertion that he committed "Aggravated Battery/Domestic Violence" provided notice that the State was alleging he committed only aggravated battery with a domestic violence designation, as opposed to aggravated battery or any crime of domestic violence. Lyon then claims that because the warrant put him on notice of only aggravated battery, the district court violated his due process rights when it found he committed a domestic battery. Lyon's argument heavily relies on State v. Scott, No. 115,432, 2017 WL 2210442 (Kan. App. 2017) (unpublished opinion). An unpublished opinion is not binding precedent but may be cited as persuasive value with respect to a material issue not addressed in a published opinion of a Kansas appellate court. Supreme Court Rule 7.04(g)(2)(i) (2020 Kan. S. Ct. R. 4). In Scott, a warrant alleged that Scott appeared to be under the influence of an unknown substance on a specific date. The State claimed this violated the condition of Scott's probation that he "shall not possess or con- sume any type of alcohol or drugs unless they are prescribed for him by a licensed physician." 2017 WL 2210442, at *4. Im- portantly, this condition allowed Scott to take prescription medications and did not address misusing such medications. After an evidentiary hearing showed that he misused prescribed medications, the district judge determined that Scott violated his probation by either using "an unknown substance or as I have determined . . . knowingly misusing his prescribed medications." 2017 WL 2210442, at *2. On appeal, our court reversed the order finding Scott in violation of his probation. 2017 WL 2210442, at *5. The Scott court first concluded that the record did not support the finding that Scott was under the influence of any substance other than his prescription medication. 2017 WL 2210442, at *4. The court then VOL. 58 COURT OF APPEALS OF KANSAS 481

State v. Lyon held that Scott's due process rights were violated because the district court relied on a different probation violation than what the State alleged in the warrant, concluding:

"[I]f the State wanted to revoke Scott's probation for misusing his prescription medication, due process required that Scott be put on notice of this. Because the State failed to plead this misuse in the probation violation warrant, the district court could not use Scott's misuse of his prescription medications as a basis to find him in violation of his probation." 2017 WL 2210442, at *5.

The circumstances in Scott are materially different from those in this case. Therefore, Scott has little persuasive value. Unlike in Scott, the district court's finding that Lyon committed a domestic battery means the State proved that he violated a specific condition of probation that was alleged in the warrant. Notably, our court has found that due process does not require the State to assert that a probationer committed a new crime when giving notice of alleged probation violations. State v. McGill, 51 Kan. App. 2d 92, 97, 340 P.3d 515 (2015). But in this case, the warrant alleged Lyon committed a new crime, specified the type of crime committed, and noted the relevant facts were contained in a specific police report. Even accepting Lyon's interpretation that "Aggravated Bat- tery/Domestic Violence" means only aggravated battery with a domestic violence designation, Lyon was given sufficient notice of the violation that the State intended to prove. The warrant's language was reasonably calculated to apprise Lyon that the State intended to establish he violated his probation by committing a criminal offense when he used violence against C.D. on October 18, 2018. Moreover, even in prosecutions for charged crimes, the accused may be convicted of an offense not included in a complaint if the offense is a lesser included offense of the crime charged. State v. Daniels, 223 Kan. 266, Syl. ¶ 5, 573 P.2d 607 (1977); K.S.A. 2019 Supp. 21-5109(b). This is because "the charging of the greater offense satisfies the notice requirements for the lesser offense and the defendant is therefore afforded due process." State v. Ramirez, 299 Kan. 224, 228, 328 P.3d 1075 (2014). Battery is a lesser included offense of various forms of aggravated battery. State v. Williams, 308 Kan. 1439, 1457, 430 P.3d 482 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

448 (2018). Because the district court determined that Lyon committed domestic battery under either subsections (a)(1) or (a)(2) of K.S.A. 2018 Supp. 21-5414, it necessarily found that Lyon committed the crime of battery against a person with whom he was involved in a dating relationship or a family or household member. See State v. Harris, 46 Kan. App. 2d 848, 851-52, 264 P.3d 1055 (2011). And since the warrant alleged Lyon's crime was an act of domestic violence, he was informed that the State was alleging his victim was a person with whom he was involved in a dating relationship or a family or household member. K.S.A. 2019 Supp. 21-5111(i). As a result, the warrant's allegation that Lyon committed "Aggravated Battery/Domestic Violence" satisfied the notice required to find that he committed a domestic battery and afforded him the requisite due process. Lyon does not contest the fact substantial competent evidence exists in the record to support the trial court's finding that he committed the offense of domestic battery. The district court did not violate Lyon's due process rights by finding that he violated his probation by committing a domestic battery. As a result, the district court had the discretion to bypass intermediate sanctions and revoke Lyon's probation under either K.S.A. 2018 Supp. 22- 3716(c)(8)(A) or K.S.A. 2018 Supp. 22-3716(c)(9)(B). A reasonable person could agree with the district court, and we find no abuse of discretion in its decision to revoke Lyon's probation and impose his underlying sentence.

The district court did not err in revoking Lyon's probation.

CRIMINAL HISTORY CLASSIFICATION

Lyon next contends the district court erred by classifying his 2010 Kansas aggravated burglary conviction as a person felony when calculating his criminal history score. Lyon argues this conviction should have been classified as a nonperson felony because the elements of the 2010 version of a Kansas aggravated burglary are broader than of the elements of the 2017 version of the crime. VOL. 58 COURT OF APPEALS OF KANSAS 483

State v. Lyon

Classification of prior offenses for criminal history purposes involves statutory interpretation. Statutory interpretation is a question of law subject to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d 850 (2019). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). Although criminal statutes are generally strictly construed against the State, this principle is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate the legislative design and the true intent of the law. State v. Gens- ler, 308 Kan. 674, 680, 423 P.3d 488 (2018). When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. The courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. State v. Keel, 302 Kan. 560, 573- 74, 357 P.3d 251 (2015). Under the KSGA, criminal sentences are based on two controlling factors: the defendant's criminal history and the severity level of the crime committed. K.S.A. 2019 Supp. 21-6804(c). A defendant's criminal history includes an offender's criminal record of adult felony convictions, juvenile adjudications, and misdemeanors as provided in K.S.A. 2019 Supp. 21-6810. When calculating a defendant's criminal history score, a district court lists the defendant's prior convictions and classifies each conviction as a person or nonperson offense. K.S.A. 2019 Supp. 21-6810. The KSGA uses prior Kansas convictions and prior out-of-state convictions to calculate a defendant's criminal history. K.S.A. 2019 Supp. 21-6810; K.S.A. 2019 Supp. 21-6811(e)(1). Prior convictions can further be broken down into out-of-state convictions; 484 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon pre-guideline Kansas convictions; and post-guideline Kansas convictions with July 1, 1993 being the date the KSGA went into effect. Once the court has determined the appropriate criminal history score, that history score and crime severity level are placed into the appropriate sentencing grid and that sentence within the designated box will determine the presumptive sentence for the new crime of conviction. Prior convictions for person crimes will, as a general rule, result in a harsher sentence. See K.S.A. 2019 Supp. 21-6809. No one can dispute the determination of classification of both out-of-state and pre-KSGA Kansas convictions, has been a long and at times confusing endeavor. Due to a lack of guidance by the Legislature the Kansas courts have had to over a period of many years determine what constitutes a comparable offense and the date of determination of that comparable offense as set out in the KSGA in relation to out-of- state convictions and pre-guideline Kansas convictions. See State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003); State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010); State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014); State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015); State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018); State v. Murdock, 309 Kan. 585, 439 P.3d 307 (2019); and State v. Coleman, 311 Kan. 305, 460 P.3d 368 (2020). The present state of Kansas law requires an out-of-state offense to be comparable to a current offense under the Kansas criminal code within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3) and K.S.A. 2017 Supp. 21-6810(d). The earlier crime's elements cannot be broader than the elements of the current Kansas crime being considered. Wetrich, 307 Kan. at 562. Similarly, the identical requirement applies to Kansas crimes committed before implementation of the Kansas Sentencing Guidelines Act (KSGA). Coleman, 460 P.3d at 371. As a result, a prior out-of-state offense or pre-KSGA crime must have identical or narrower elements than a current Kansas person crime to be scored as a person offense for criminal history purposes. VOL. 58 COURT OF APPEALS OF KANSAS 485

State v. Lyon

When we consider classification of post-guideline Kansas convictions do we continue on the same path, or do we take a sim- pler more direct route? "[P]erceived simplicity can often conflict with actual simplicity of usage." Wroblewski, The Complexity of Simplicity, UX Matters.com (December 4, 2006). Can the conflict be reconciled? We now turn to Lyon's arguments. Lyon contends that the Wetrich identical-or-narrower test applies to his post-KSGA Kansas offenses. Lyon reasons that under Keel, classification of his prior 2010 Kansas aggravated burglary conviction is determined from the classification of the "comparable Kansas offense" in effect when he committed his 2017 crime. And relying on Wetrich, Lyon claims that a 2017 Kansas offense is comparable to his 2010 Kansas crime only if the earlier crime's elements are identical to, or narrower than, the 2017 version of the crime to which it is being compared. Because a 2010 Kansas aggravated burglary is broader than the 2017 version, Lyon suggests there is no comparable person offense and his 2010 conviction must be scored as a nonperson offense. Since 2010, the Kansas Legislature has recodified the crime, changed the structure of the statute, and amended the definition of aggravated burglary. K.S.A. 2017 Supp. 21-5807(b). The statutory changes added the crime of aggravated burglary of a dwell- ing, K.S.A. 2017 Supp. 21-5807(b)(1). Most important to Lyon's argument, the statutory changes removed certain conduct from the scope of aggravated burglary. Under the 2010 version of aggravated burglary, a person barred from entering a retail establish- ment who later returned during operating hours when others were present with the intent to shoplift could have been convicted of aggravated burglary. See State v. Haynes, No. 96,244, 2007 WL 2239259, at *1 (Kan. App. 2007) (unpublished opinion). But under K.S.A. 2017 Supp. 21-5807(e), an aggravated burglary no longer included

"any person entering into or remaining in a retail or commercial premises at any time that it is open to the public after having received a personal communication from the owner or manager of such premises not to enter such premises pursuant to K.S.A. 21-5808, and amendments thereto, except when such person is entering into or remaining in such premises with the intent to commit a person felony or sexually motivated crime therein."

486 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

Since Lyon's 2010 Kansas aggravated burglary is broader than the 2017 version of the offense, we must determine whether the Wetrich identical-or-narrower test applies to his prior post-KSGA conviction. We begin by acknowledging that the KSGA contains no explicit language explaining how to classify post-KSGA Kansas convictions as person or nonperson offenses for criminal history purposes. But unlike the legislative silence addressed in Keel, the lack of a specific provision describing how to score prior post- KSGA convictions is inconsequential under the circumstances presented in this case. 302 Kan. at 573. As explained below, the overall design and structure of the KSGA instructs that applying the Wetrich identical-or-narrower test is inappropriate when classifying post-KSGA convictions as person or nonperson offenses. It is an "established sentencing rule that the penalty parameters for an offense are fixed on the date the offense was committed." Keel, 302 Kan. at 582. As a result, Kansas courts classify a defendant's prior convictions based on the Kansas classification in effect when the current crime was committed. 302 Kan. at 588. Acknowledging this precedent, Lyon's prior convictions must be scored as of the date of his current conviction on September 9, 2017. In his argument, Lyon sinks his teeth into Keel's language that a prior offense must be classified based on the classification of the current "comparable Kansas offense" and argues this quoted language requires application of the Wetrich identical-or-narrower test to determine comparability. However, Lyon's reliance on Keel for his position is not convincing. The issue in Keel involved classification of a pre-KSGA offense and not post-KSGA offense. The provisions of the KSGA show that Wetrich's identical-or- narrower test does not apply to post-KSGA convictions. K.S.A. 2017 Supp. 21-6810(d) provides that prior convictions and adjudications for pre-KSGA offenses "shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed." Similarly, when Lyon was sentenced, K.S.A. 2017 Supp. 21-6811(e)(3) required courts to classify out-of-state VOL. 58 COURT OF APPEALS OF KANSAS 487

State v. Lyon convictions by referring to "comparable offenses under the Kan- sas criminal code in effect on the date the current crime of conviction was committed." Under Wetrich and Coleman, the use of comparable offenses under these subsections requires the prior offense to have elements identical to, or narrower than, the Kansas crime to which it is being compared. A rule of statutory construction provides that courts may presume that "the expression of one thing in a statute implies the exclusion of all others." State v. Sims, 40 Kan. App. 2d 119, 120, 190 P.3d 271 (2008). Because the Legislature made the decision to limit the comparability approach found in K.S.A. 2017 Supp. 21- 6810(d) and K.S.A. 2017 Supp. 21-6811(e)(3) to pre-KSGA offenses and out-of-state offenses, we find the Legislature did not intend this identical-or-narrower comparison approach to apply to post-KSGA offenses. This interpretation is reasonable given differences between classifying a post-KSGA Kansas conviction and a pre-KSGA Kansas conviction or out-of-state conviction. A pre-KSGA or out- of-state conviction has no person or nonperson designation and courts must use a comparable post-KSGA offense to determine how the prior conviction should be classified. But for post-KSGA convictions, person and nonperson classifications were already set out in the applicable Kansas criminal statute. See Keel, 302 Kan. at 574. As a result, when the statute under which the prior post- KSGA conviction is still in effect, the KSGA simply points the court to that statute to determine how to designate the prior conviction. 302 Kan. at 580. So unlike prior out-of-state or pre-KSGA convictions, there is no comparability requirement for scoring post-KSGA convictions. This interpretation is further strengthened by a review of K.S.A. 2017 Supp. 21-6810(d)(8). Subsection (d)(8) indicates: "Prior convictions of a crime defined by a statute that has since been repealed shall be scored using the classification assigned at the time of such conviction." When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. The courts must construe statutes to avoid unreasonable or absurd re- 488 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon sults and presume the Legislature does not intend to enact meaningless legislation. State v. Keel, 302 Kan. 560, 573-74, 357 P.3d 251 (2015). It would be unreasonable to find a person felony classification is retained when a statute is repealed, but when the statute is merely amended a determination must be made to determine if the two statutes are comparable and based upon that comparison to determine whether the prior crime is classified as a person or nonperson offense. Accordingly, we find that the Wetrich identical-or-narrower test does not apply to scoring Lyon's post-KSGA Kansas conviction of aggravated burglary. Lyon presents an alternative argument that the identical-or- narrower test is constitutionally mandated by the Sixth Amend- ment and by failing to use the test the district court engaged in constitutionally improper judicial fact-finding in violation of Ap- prendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But Lyon's appeal is timely only to the revocation of his probation, and not to a direct appeal of his sentence for the 2017 crimes. As a result, we treat Lyon's argument as a motion to correct an illegal sentence. See Coleman, 460 P.3d at 475. Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, Lyon may not use a motion to correct an illegal sentence to argue that his sentence is unconstitutional. State v. Bryant, 310 Kan. 920, 922, 453 P.3d 279 (2019). Accordingly, we decline to reach the merits of Lyon's constitutional claim. Having determined that the identical-or-narrower comparability test does not apply to Lyon's post-KSGA offense and his constitutional argument is not properly before the court, we now consider whether a repeal of K.S.A. 21-3716 and or K.S.A. 2017 Supp. 21-5807(b) occurred and then if so whether the provisions of K.S.A. 2017 Supp. 21-6810(d)(8) apply. Under K.S.A. 2017 Supp. 21-6810(d)(8), "[p]rior convictions of a crime defined by a statute that has since been repealed shall be scored using the classification assigned at the time of such conviction." This subsection implies that "if the statute has not been repealed, then the crime is scored using the classification in the statute at the time of the current crime of conviction." Keel, 302 VOL. 58 COURT OF APPEALS OF KANSAS 489

State v. Lyon

Kan. at 580. So when the statute under which the prior conviction was obtained is still in effect, courts simply look to that statute to determine how to designate the prior conviction. But in the less common circumstance when the Legislature has repealed the post- KSGA criminal statute, courts use the classification assigned when the defendant committed the prior offense. 302 Kan. at 580. The KSGA does not define what the term "repealed" means in the context of K.S.A. 2017 Supp. 21-6810(d)(8). Black's Law Dictionary defines repeal as an "[a]brogation of an existing law by express legislative act." Black's Law Dictionary 1553 (11th ed. 2019). Our court has previously found that recodification of a criminal statute without a substantive change to the definition of the crime does not amount to a repeal. State v. Murray, No. 113,622, 2017 WL 544641, at *9 (Kan. App. 2017) (unpublished opinion). The court in Murray further opined that "the legislature presumably wanted to provide direction for classifying crimes as person or nonperson offenses in situations where a statute defining a crime no longer existed." 2017 WL 544641, at *9. In Murray our court held the 2010 recodification of the criminal code was a repeal but classified the repeal as a "technical" repeal. Murray, 2017 WL 544641, at *9. In Murray, our court considered whether a 1977 robbery conviction should be classified as a nonperson felony based upon K.S.A. 2017 Supp. 21-6810(d)(8). It was argued the robbery statute was repealed in the 2010 recodification and therefore the classification existing in 1977 for robbery should then be utilized. Since person/nonperson classifications did not exist prior to the 1993 adoption of the KSGA, the robbery conviction must be classified as a nonperson felony. In the Murray opinion, the court found such a result to be unreasonable or absurd and as a result found the recodification of the criminal code did not constitute a repeal of previous criminal statutes. 2017 WL 544641, at *9. Murray as an unpublished opinion has persuasive authority but is not binding precedent. Supreme Court Rule 7.04(g)(2)(i). An equally strong argument can be made that the 2010 recodification of K.S.A. 21-3716 was a repeal of a criminal statute under K.S.A. 2017 Supp. 21-6810(d)(8). 490 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

Our court has additionally considered the issue of the 2011 recodification of the Kansas criminal code in another previous unpublished opinion. In re C.T., No. 107,841, 2012 WL 5205752 (Kan. App. 2012). The case dealt with the application of K.S.A. 21-3412 to an incident occurring prior to the recodification of the criminal code. Our court indicated therein, "Here, K.S.A. 21-3412 was repealed and K.S.A. 2011 Supp. 21-5413 was enacted by the same legislative action, which was a comprehensive recodification of the Kansas Criminal Code." 2012 WL 5205752, at *3. The court then refers to K.S.A. 2011 Supp. 21-5103(d), the savings clause of the new criminal code which states, "This code has no application to crimes committed prior to July 1, 2011. . . . Prose- cutions for prior crimes shall be governed, prosecuted and pun- ished under the laws existing at the time such crimes were committed." In re C.T., 2012 WL 5205752, at *3. Kansas Statutes Annotated are replete with criminal statutes including the KSGA indicating recodification of the code in 2010 resulted in the repeal of the criminal code then existing. Just a few examples include: Kansas Statutes Annotated, Volume 2A (2019 Supp.) clearly indicates 21-3716, aggravated burglary, was repealed, indicating: "Repealed, L. 2010, ch. 136, section 307; July 1, 2011." K.S.A. 2011 Supp. 21-5427(3) indicates ". . . any protective order included in K.S.A. 21-4843, prior to its repeal . . . ." Within the KSGA itself, it is indicated the criminal code was repealed in the 2010 recodification. K.S.A. 2019 Supp. 21- 6811(d)(1) indicates "if the prior conviction or adjudication was classified as a burglary as defined in K.S.A. 21-3715(a), prior to its repeal . . . ." K.S.A. 2019 Supp. 21-6804(p) is related to en- hancement of severity levels. The statute specifically cites aggravated burglary, K.S.A. 21-3716: "for violations of K.S.A. 21- 3701, 21-3715 or 21-3716, prior to their repeal . . . ." When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. The courts must construe statutes to avoid unreasonable or absurd results and presume the Leg- islature does not intend to enact meaningless legislation. Keel, 302 Kan. 573-74. VOL. 58 COURT OF APPEALS OF KANSAS 491

State v. Lyon

K.S.A. 2017 Supp. 21-6810(d)(8) can be readily be interpreted in pari materia with all provisions of the KSGA in a manner that reconciles and brings the provisions into workable harmony. K.S.A. 2017 Supp. 21-6810(d)(8) indicates, "Prior convictions of a crime defined by a statute that has since been repealed shall be scored using the classification assigned at the time of such conviction." The only instance that a classification will be "assigned at the time of such conviction" will be when determining a classification of a post-KSGA conviction. K.S.A. 2017 Supp. 21- 6810(d)(8) provides guidance to the courts of the State of Kansas on how to classify post-KSGA prior convictions. K.S.A. 2017 Supp. 21-6810(d)(8) does not apply to prior out of state convictions or pre-KSGA Kansas convictions. Such an interpretation is the only way the statute can be reconciled with the other provisions of the KSGA and be reasonable in its application. It is unreasonable to believe the Legislature intended that with an out of state prior conviction a legislative history search is required in the foreign jurisdiction to determine if the criminal statute involved has ever been repealed and or amended. The "unreasonable or absurd result" found in the Murray decision would not exist as that case dealt with a pre-KSGA conviction. Our court has considered whether a change in a crime's classification amounts to a repeal under K.S.A. 2017 Supp. 21- 6810(d)(8). Before the Keel decision, our court held that a repeal occurs when a crime is changed from a person offense to a nonperson offense. State v. Peoples, No. 102,550, 2010 WL 3984794, at *1 (Kan. App. 2010) (unpublished opinion) (holding that prior post-KSGA Kansas identity theft convictions must be scored as person felonies because the criminal statute was repealed when identity theft was changed from a person felony to a nonperson felony). But in Keel, our Supreme Court emphasized that sentences should "reflect ever-evolving sentencing philosophies and correction goals," which would include classifying prior identity theft convictions to reflect "the current viewpoint on the severity of identity theft." 302 Kan. at 588. Our court has since determined that Keel requires prior post-KSGA offenses to be scored using the current classification in effect even though the classification had been amended. State v. Patrick, No. 116,660, 2018 WL 492 COURT OF APPEALS OF KANSAS VOL. 58

State v. Lyon

4373053, at *11 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. 1352 (2019). In the present case, we are dealing with recodification rather than reclassification. If the 2010 recodification of the criminal code did not repeal the code then in existence, then what is the effect of the 2016 amendment to the crime of aggravated burglary? A similar argument can be made that the 2016 amendment to the crime of aggravated burglary constituted a repeal of the then existing crime of aggravated burglary. The 2016 Kansas Laws, Chapter 90 (H.B. 2462) includes in section 5: "K.S.A. 2015 Supp. 21-5706, 21-5801, 21-5807, and 21-6804 are hereby repealed." Further, the 2016 amendment went far beyond reclassification, substantially altering the definition of aggravated burglary as previously set out in this opinion. In any event, we need not determine whether the recodification and/or statutory amendments to aggravated burglary amounted to a repeal because the result would be the same. As- suming the recodification and/or amendments were not a repeal, the district court properly scored his prior conviction as a person felony because all forms of aggravated burglary were a person felony when Lyon committed his current crimes. If the recodification and/or amendments amounted to a repeal, the district court properly scored his prior conviction as a person felony because aggravated burglary was a person felony when Lyon committed that crime. As a result, regardless of the statutory amendments to aggravated burglary, the district court properly scored Lyon's prior conviction for aggravated burglary as a person offense. In simplest terms, we find when a conviction of a prior crime occurs post-implementation of the KSGA, as a matter of practical application, the classification of person or nonperson felony determined at the time of the new conviction will be the same as the classification of the prior crime on the date of its commission unless the Legislature has changed the classification of the crime, Keel, 302 Kan. at 573, or the statute has been ruled unconstitutional. K.S.A. 2017 Supp. 21-6810(d)(9). The aggravated burglary was a person felony when committed by Lyon in 2010. Aggra- vated burglary as amended remained a person felony when Lyon committed the present crimes in 2017. "Simplicity is the ultimate VOL. 58 COURT OF APPEALS OF KANSAS 493

State v. Lyon sophistication." (Often attributed to Leonardo de Vinci.) Lyon's 2010 aggravated burglary conviction was properly classified as a person felony.

Affirmed. 494 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Davis and Garcia-Bebek

___

No. 121,110

In the Matter of the Marriage of KIMBERLY JEAN DAVIS, Appellee, and VICTOR DAVID GARCIA-BEBEK, Appellant.

___

SYLLABUS BY THE COURT

1. PARENT AND CHILD—Statutes Guide Determination of Custody by Dis- trict Court—The provisions of K.S.A. 2019 Supp. 23-3201 et seq. guide the district court's discretionary determination of a child's custody, residency, visitation, and parenting time.

2. SAME—District Court's Decision of Parenting Time—Appellate Review. Given a district court's unique vantage point of what is often an emotionally charged situation, Kansas appellate courts generally do not overturn parenting time decisions unless the district court abused its discretion.

3. SAME—Reasonable Parenting Time under Statute. K.S.A. 2019 Supp. 23- 3208(a) states: "A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health."

4. SAME—Determination of Parenting Time—Statutory Factors. K.S.A. 2019 Supp. 23-3203(a) sets out a nonexclusive list of factors a district court can use to determine issues of parenting time.

5. COURTS—Insufficiency of Evidence Challenge—Appellate Review. When a district court's decision is challenged for insufficiency of evidence or as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses.

6. SAME—Insufficiency of Evidence Challenge—Appellate Review. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal.

7. PARENT AND CHILD—Parenting Time Denied in This Case—No Abuse of Discretion. Under the facts of this case, it was not an abuse of discretion for the district court to deny the father parenting time in Peru.

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed July 24, 2020. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

No appearance by appellee.

VOL. 58 COURT OF APPEALS OF KANSAS 495

In re Marriage of Davis and Garcia-Bebek

Before SCHROEDER, P.J., HILL AND GARDNER, JJ.

SCHROEDER, J.: Victor David Garcia-Bebek left Kansas to live in Peru with outstanding criminal charges pending with the United States District Court for the District of Kansas. He now appeals the district court's denial of his request to exercise parenting time in Peru with his two minor children. We observe no abuse of discretion for the district court to deny parenting time in Peru because Garcia-Bebek was free to come to Kansas to exercise his parenting time as provided in the parenting time schedule. We also find there was sufficient evidence to support the district court's decision Garcia-Bebek could not exercise his parenting time in Peru. We affirm.

FACTS

Kimberly Jean Davis and Garcia-Bebek married in 2006 and divorced in 2014. About a year after the divorce, the district court ordered the parties to share joint legal custody of the parties' two minor children and detailed a shared residency plan. In the shared residency plan, the district court provided for Garcia-Bebek to have parenting time with the children on Christmas Eve and Christmas Day of even-numbered years. The shared residency plan also provided:

"[Garcia-Bebek] shall be allowed to take the minor children to visit his family in Peru at a minimum of every other year, limited to no longer than 30 days unless additional time is agreed, in writing by the parties. Said parenting time shall not interfere with the minor children's school schedule."

Davis and Garcia-Bebek's custody issues continued to simmer with various motions to change custody of the children. Initially, the district court denied the requests. In March 2018, Davis moved to modify the legal and residential custody of the children and requested sole legal custody. In support of her motion, Davis included an affidavit contending:

 In April 2017, Garcia-Bebek "pled guilty to three (3) counts of voting without being qualified."  In December 2017, the federal government filed an indictment against Garcia-Bebek, alleging he "'knowingly and intentionally procured, contrary to law, naturalized 496 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Davis and Garcia-Bebek

United States citizenship'" because he failed to disclose felony crimes committed while in the United States on his naturalization application. Davis claimed Garcia-Bebek had not informed her of this indictment and she read about it in the newspaper.  Garcia-Bebek had plans to move to Peru for a new job. Davis claimed it would be in the best interests of the children to have all parenting time take place within the United States, despite the parenting plan ordering the children to spend the Christmas holiday in Peru with Garcia- Bebek because "[t]he children do not speak Spanish, and if [Garcia-Bebek] moves away, they will inevitably lose their relationship with him, making the 30 day trip ex- tremely uncomfortable."  Davis was "uncomfortable with the children having any parenting time in Peru while there is still an active federal case against [Garcia-Bebek]."

In response, Garcia-Bebek filed a proposed parenting plan and moved to enforce and establish reasonable parenting time. In his motion, Garcia-Bebek affirmed he pled guilty to three counts of voting without being qualified and was moving to Peru. The district court held a hearing on the motions and took the matter under advisement. Before the district court issued its decision, the parties agreed that Davis would have primary residential custody of the children but could not reach a decision on parenting time. As a result, the district court made the following finding about Garcia-Bebek's request to enforce the court order allowing him to exercise his 30 days of parenting time in Peru:

"[Garcia-Bebek's] request to exercise his parenting time in accordance with the [permanent parenting plan ordered in September 2015] in Peru is granted. The children may travel to see him as unaccompanied minors if allowed by the air- line, or with escort by father's or mother's family. Based on a review of the Court file and because [Garcia-Bebek] will face such a high risk of never seeing his minor children again until they turn eighteen (18) if he fails to immediately return the children at the end of his parenting time, the Court is not concerned about international parental abduction. The travel will be at [Garcia-Bebek's] expense, including airfare for [Davis] if she elects to accompany the children."

VOL. 58 COURT OF APPEALS OF KANSAS 497

In re Marriage of Davis and Garcia-Bebek

After the district court granted Garcia-Bebek's request, Davis moved for reconsideration, arguing the decision was not in the best interests of the children and the district court's reasoning regarding international parental abduction was flawed. Davis claimed Garcia-Bebek "has proven that he is not above lying to the government" and it was because of his "intentional deceitful actions" that he could not travel to the United States to "pick up his own children for parenting time." For this reason, and because Garcia-Bebek "has not proven that he can follow any rules or laws of this country," Davis claimed Garcia-Bebek was more likely not to return the children to the United States. After a hearing and several more motions asking for clarifica- tion of the district court's prior orders, the district court found Da- vis had "the authority to send or not to send the children for parenting time with [Garcia-Bebek] in Peru over the Christmas Break." In its order, the district court considered the allegations by both parties but ultimately denied Garcia-Bebek parenting time in Peru because "[Garcia-Bebek] is wanted on outstanding criminal charges filed by the United States in the Federal District of Kan- sas." The district court found that "requiring an objecting parent to send children outside of the United States for parenting time with a parent under indictment in a United States criminal case is not in the best interests of the minor children." After this decision, Garcia-Bebek moved for an order altering or amending the judgment. In his motion, Garcia-Bebek argued the district court erred when it allowed Davis "exclusive control over whether [Garcia-Bebek] had parenting time" and effectively "denied [him] parenting time altogether," because it failed to find under K.S.A. 2019 Supp. 23-3208(a) that the exercise of parenting time would seriously endanger the children's physical, mental, moral, or emotional health. As to Davis' claims about Garcia-Be- bek's federal indictment, Garcia-Bebek alleged his counsel had spoken to the federal prosecutor, who informed counsel that the indictment "would likely be dismissed" after being on file for one year, but this was not guaranteed. After a hearing on the motion to alter judgment, the district court found: "The existence of the federal indictment and warrant outweigh[s] all other statutory factors that would favor parenting 498 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Davis and Garcia-Bebek time in Peru. Except as otherwise agreed by the parties, it is not in the best interests of the minor children to have parenting time with [Garcia-Bebek] outside the United States."

ANALYSIS

Parenting time outside of the United States can be denied.

Initially, Garcia-Bebek claims the district court abused its discretion because it violated the requirements of K.S.A. 2019 Supp. 23-3208(a) when it failed to make the required findings for denying Garcia-Bebek parenting time in Peru. Various provisions of K.S.A. 2019 Supp. 23-3201 et seq. guide a district court's discretionary determination of a child's custody, residency, visitation, and parenting time. All of those decisions are guided by the determination of what factors are in the children's best interests and welfare. Given the district court's unique vantage point of what is often an emotionally charged situation, Kansas appellate courts generally do not overturn these decisions unless the district court abused its discretion. See Cheney v. Poore, 301 Kan. 120, 128, 339 P.3d 1220 (2014); In re Mar- riage of Kimbrell, 34 Kan. App. 2d 413, 419, 119 P.3d 684 (2005). A judicial action constitutes an abuse of discretion if it is "'(1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.'" Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). The party asserting the district court abused its discretion bears the burden of showing such abuse. Gannon v. State, 305 Kan. 850, 868, 390 P.3d 461 (2017). As noted, Garcia-Bebek relies on the language of K.S.A. 2019 Supp. 23-3208(a), which states: "A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health." Another panel of this court interpreted the predecessor of this statute and found:

"The clear intent of K.S.A. 2004 Supp. 60-1616(a) is to create a rebuttable presumption that a parent is entitled to reasonable parenting time and visitation. This presumption may be rebutted if, after a hearing, the trial court finds 'that the exercise of parenting time would seriously endanger the child's physical, mental, moral or emotional health. Without such a finding, however, K.S.A. 2004 Supp. VOL. 58 COURT OF APPEALS OF KANSAS 499

In re Marriage of Davis and Garcia-Bebek

60-1616(a) indicates that a trial court must enter an order for reasonable parenting time. [Citation omitted]." Kimbrell, 34 Kan. App. 2d at 422.

The crux of Garcia-Bebek's argument rests on the contention that the district court's denial of his right to exercise his parenting time in Peru was an abuse of discretion. At the hearing on Garcia- Bebek's motion to alter judgment, the district court stated it did not "have any problem ordering that [Garcia-Bebek] can have parenting time here in Wichita." The district court added it would be "more than happy" to give Garcia-Bebek parental time in Wichita, but it believed that "as long as he's got the outstanding federal case and warrant, he's not going to come [Wichita]." Based on this rationale, the district court was not denying Gar- cia-Bebek parenting time, as he was free to exercise it in Wichita. And since Garcia-Bebek claims the warrant was not going to be issued, he had nothing stopping him from flying to Wichita to exercise his parenting time in the United States. The district court only denied his right to have the children flown to Peru to exercise his parenting time when there was a concern he might not return the children to Davis in Kansas. The district court did not need to make a finding that Garcia-Bebek's exercise of his parenting time would seriously endanger the children's physical, mental, moral, or emotional health under K.S.A. 2019 Supp. 23-3208(a) since parenting time was available to him in Wichita. Additionally, K.S.A. 2019 Supp. 23-3203(a) sets out a nonexclusive list of factors a court can use to determine issues of parenting time. Specifically, the list provides "the location of the parties' residences and places of employment" can be considered. K.S.A. 2019 Supp. 23-3203(a)(13). Garcia-Bebek has not carried his burden to show the district court abused its discretion when it considered Garcia-Bebek's residence was in Peru and he had an outstanding warrant for his arrest out of the federal District of Kansas.

Sufficient evidence supports the district court's parenting time determination.

Garcia-Bebek next argues the district court abused its discretion because it failed to provide factual support when it deter- 500 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Davis and Garcia-Bebek mined exercising parenting time in Peru was not in the best interests of the children due to his pending federal criminal charges. Although Garcia-Bebek refers to the abuse of discretion standard based on inadequate factual findings, he is really arguing insufficient evidence supports the district court’s decision denying his parenting time in Peru. It is undisputed there is an outstanding indictment in a criminal case for his arrest that could be issued at any time should he return to the United States. What more evidence does he want? At first, Garcia-Bebek seems to argue the district court erred by making factual findings unsupported by substantial competent evidence. But, as his argument progresses in his brief, Garcia-Be- bek quotes and concedes the district court did find "[t]he existence of the federal indictment and warrant outweigh[s] all other statutory factors that would favor parenting time in Peru" but then argues: "In short, there is no evidence . . . to support the finding of the district court." When a district court's decision is challenged for insufficiency of evidence or as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. "If the evidence, . . . when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal." Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 407, 266 P.3d 516 (2011). Garcia-Bebek does not explain why he believes the evidence was insufficient other than simply stating, "[T]here is no evidence." The district court's decision was simple: The existence of the federal indictment outweighed all other factors favoring parenting time in Peru, and it was not in the best interests of the children to travel to Peru. Sufficient evidence supports the district court's denial of Garcia-Bebek's request to exercise parenting time in Peru, and it did not abuse its discretion.

Affirmed. VOL. 58 COURT OF APPEALS OF KANSAS 501

Hernandez v. Pistotnik

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No. 120,228

YUDI HERNANDEZ, Appellant, v. BRAD PISTOTNIK and BRIAN PISTOTNIK, Appellees.

___

SYLLABUS BY THE COURT

1. CONSUMER PROTECTION ACT—Statutory Requirements for Plaintiff. To prevail on a Kansas Consumer Protection Act (KCPA) claim, a plaintiff must prove that (1) plaintiffs were consumers under the KCPA, (2) defendants were suppliers under the KCPA, (3) defendants engaged in a deceptive or unconscionable act or practice in violation of K.S.A. 50-626 or K.S.A. 50-627, and (4) plaintiffs were aggrieved by such act.

2. SAME—Consumer Must Show Legal Rights Affected and Causal Connec- tion. To be aggrieved under the KCPA, the consumer must show that the seller's act adversely affects the consumer's legal rights and must show a causal connection between the deceptive act and the claimed injury.

3. SAME—Causal Connection Requirement Not Met by Plaintiff. The causal connection required under the KCPA between an attorney's deceptive advertising and the plaintiff's claimed injury is not shown when a plaintiff plays no part in the decision to hire that attorney, and her father who chose that attorney was unaware of the attorney's advertising.

4. SAME—Recovery for Fraudulent Misrepresentation. Under certain circumstances, a plaintiff may recover for fraudulent misrepresentation based on indirect reliance.

5. COURTS—Discovery Controlled by District Court's Discretion—Appel- late Review. Control of discovery is entrusted to the sound discretion of the district court, and orders concerning discovery will not be disturbed on appeal in the absence of an abuse of discretion.

6. ATTORNEY AND CLIENT—Attorney's Response to Disciplinary Admin- istrator Confidential Under Rule 222. Under Kansas Supreme Court Rule 222 (2020 Kan. S. Ct. R. 273), an attorney's response to the office of the Kansas Disciplinary Administrator is confidential and not subject to discovery.

7. VENUE— Change of Venue Decision—Appellate Review. Under K.S.A. 60-609, a district court has the discretion to grant or deny a party's motion for change of venue. We review the district court's decision to change venue for an abuse of discretion.

502 COURT OF APPEALS OF KANSAS VOL. 58

Hernandez v. Pistotnik

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opin- ion filed July 31, 2020. Affirmed.

Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.

N. Russell Hazlewood, Donald N. Peterson, and Nathan R. Elliott, of Gray- bill & Hazlewood LLC, of Wichita, for appellees.

Before GARDNER, P.J., WARNER, J., and ROBERT J. WONNELL, District Judge, assigned.

GARDNER, J.: Yudi Hernandez sued Brad Pistotnik and Brian Pistotnik for fraud and violation of the KCPA based on defendants' allegedly misleading television advertisements for legal services. The district court granted summary judgment to defendants on both claims, finding Yudi failed to prove she relied on defendants' advertisements in securing their legal services. Yudi appeals, arguing the district court improperly granted summary judgment, shielded discovery, and transferred venue. Finding no error, we affirm.

Factual and Procedural Background

In June 2013, Yudi was injured as a passenger in a two-car accident. She was 17 years old and suffered multiple injuries. The accident rendered her unconscious and doctors placed her in a drug-induced coma for one month. She was also given a trache- ostomy tube so she was unable to speak for two months after she regained consciousness. After the accident, Yudi's father (Ernesto Hernandez) told Yudi's sister (Mirna Hernandez) that Yudi had been involved in a serious car accident. Because Yudi's parents spoke little English and Ernesto could not read in English or Spanish, Mirna helped the family find an attorney. Mirna first called a family friend who recommended that they hire Brad. The family friend knew about Brad from his television commercials. So Mirna looked for Brad's television advertisements and saw he was claiming he could collect millions of dollars for car accidents. Those advertisements touted large settlement amounts and no attorney fees if the client got no money for the injury. Mirna went to Brad's office—the law office for the Affiliated Attorneys of Pistotnik Law Offices (AAPLO) in Wichita. VOL. 58 COURT OF APPEALS OF KANSAS 503

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Mirna had an initial consultation with Brian Pistotnik. A few days later, Ernesto—with Mirna's assistance—retained AAPLO to pursue Yudi's bodily injury claim against the drivers of the two vehicles involved in the accident. This agreement defined AAPLO as the attorney and Yudi as the client through her natural father. But according to Brad, Brian was the only person who negotiated that agreement for AAPLO and was the only attorney who worked on Yudi's case. In August 2013, Electric Insurance Company offered to pay its liability policy limits of $100,000 to settle Yudi's claim. And in October 2013, Farmers Insurance Group tendered its liability policy limits of $50,000. So, by November 2013, Brian had obtained policy limit offers totaling $150,000 from the liability insurers of the drivers alleged to be at fault for Yudi's injuries. Yet before accepting these offers, Ernesto fired AAPLO and hired Steve Brave, who had previously worked at AAPLO, to perform the remaining work necessary to resolve Yudi's claim. Shortly after his termination, Brian filed a notice of attorney's lien for AAPLO and served it on the liability insurers. The lien sought $1,504.25 for costs and $49,498.58 in attorney fees against any funds, proceeds, or monies payable to Yudi as a result of injuries and damages sustained in her accident. In May 2014, Ernesto and Yudi entered into written settlement agreements. These agreements released the drivers of the two vehicles in the accident and the automobile insurers from all liability in exchange for $150,000—the same amount insurers had earlier offered to Brian. That money was to be paid directly to Ernesto and was not payable to Yudi. After the settlement agreements were signed, Brave contacted the health care providers to whom Ernesto owed unpaid medical bills for Yudi. The providers agreed to take reduced amounts of money to settle their accounts in full. After Brave's negotiations, Ernesto paid $51,570.80 to health care providers for Yudi's injuries, and $32,809.73 to Brave for attorney fees. Brave then paid Ernesto the remaining $65,619.47 by check payable to Ernesto. Ernesto immediately endorsed this check to Yudi, who deposited it into her personal bank account. Brian then sued Ernesto to recover the amount sought in the AAPLO lien. And Yudi sued Brian and Brad, arguing they had 504 COURT OF APPEALS OF KANSAS VOL. 58

Hernandez v. Pistotnik defrauded her and violated the Kansas Consumer Protection Act. She filed her suit in Cowley County, but the district court later granted Brad's motion to transfer venue to Sedgwick County. Throughout litigation, several discovery disputes arose when Yudi requested production of AAPLO advertisements and settlements with other clients, and a response Brad had made to the office of the Kansas Disciplinary Administrator (KDA) when someone filed a complaint against him. Defendants objected, responding that the settlement and disciplinary documents were privileged and not subject to discovery. At first, the district court found that the settlements were discoverable. But after an in camera inspection, the district court determined the settlements were confidential so it issued a protective order limiting the production of information in them. The district court also found that Brad's response to the KDA was not discoverable. In due course, Brad moved for summary judgment, arguing Yudi had failed to state a claim on which relief could be granted and had failed to produce sufficient evidence of fraud. Brad also argued that Yudi could not recover under the KCPA because she was not an aggrieved party. The district court granted Brad's motion. It found that because Yudi had not seen Brad's advertisements before hiring AAPLO, Yudi's misrepresentation claim necessarily relied on an indirect reliance theory. Even assuming, however, the applicability of that theory, the district court found no evidence suggesting that Ern- esto—through Mirna or any other party—had received and indirectly relied on the alleged misrepresentations in the advertisements when he hired AAPLO on Yudi's behalf. Thus, Yudi failed to present sufficient evidence of fraud. Similarly, the district court held that Yudi showed no legal authority that she could bring a KCPA claim based on indirect reliance on a misrepresentation. Thus, the district court dismissed Yudi's claims and granted summary judgment for Brad. Although Yudi moved to reconsider, the district court denied her request. Yudi timely appeals.

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Did the District Court Err in Granting Summary Judgment on Yudi's KCPA Claims?

We first address Yudi's claim that the district court erred in granting summary judgment to defendants on her KCPA claim. She contends the district court misapplied the KCPA by requiring her to establish reliance, failed to resolve all inferences in her favor, and ignored disputed issues of material fact. Brad argues that because Yudi failed to establish that she was an aggrieved consumer under the KCPA, the district court was correct. In an appeal from the district court's ruling on a summary judgment motion, we consider the motion de novo and apply the same standards which the district court applied. We owe no deference to the district court's decision or rationale. Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014). Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cady, 298 Kan. at 734. Any court considering the motion must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. When opposing a motion for summary judgment, an adverse party must come for- ward with evidence to establish a dispute as to a material fact. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. The court must deny a motion for summary judgment if reasonable minds could differ over the conclusions drawn from the evidence. See Patter- son v. Cowley County, 307 Kan. 616, 621, 413 P.3d 432 (2018); Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549 (2015).

Analysis

Yudi argues that she established that she is an aggrieved consumer based on Brad's allegedly false and misleading advertisements, which touted large recoveries and promised zero fees if AAPLO did not recover money for the client. She mainly asserts that the KCPA does not require her to show direct or indirect reliance on Brad's misrepresentations to recover under the KCPA. 506 COURT OF APPEALS OF KANSAS VOL. 58

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The KCPA exists in part to "protect consumers from suppliers who commit deceptive and unconscionable practices." K.S.A. 50- 623(b). We construe that Act liberally to ensure that purpose is fulfilled. See K.S.A. 50-623; Unruh v. Purina Mills, 289 Kan. 1185, 1207, 221 P.3d 1130 (2009) (Rosen, J., concurring). To prevail on a KCPA claim, a plaintiff must prove: "(1) plaintiffs were consumers under the KCPA, (2) defendants were suppliers under the KCPA, (3) defendants engaged in a deceptive or unconscionable act or practice in violation of K.S.A. § 50-626 . . . or K.S.A. § 50-627, and (4) plaintiffs were 'aggrieved' by such act." In re Motor Fuel Temperature Sales Practices, 279 F.R.D. 598, 604-05 (D. Kan. 2012). The parties concede that Yudi was a consumer, defendants were suppliers, and they engaged in a "consumer transaction" under the KCPA. The district court found solely that Yudi failed to establish she was "aggrieved," as the Act requires. See K.S.A. 50-634(a), (b). The Act does not define the term "aggrieved." But our cases have done so. We begin with our Supreme Court's decision in Fin- stad v. Washburn University, 252 Kan. 465, 845 P.2d 685 (1993). There, a group of students sued Washburn University for alleged misrepresentations about program accreditation. Our Supreme Court held that it would not interpret "an aggrieved consumer to be one who is neither aware of nor damaged by a violation of the Act." 252 Kan. at 473. It found "the students did not rely on the false statement, and many, if not all, of the students were unaware of the statement." 252 Kan. at 472. Thus the students failed to show a causal connection between their damage and the alleged misrepresentation. 252 Kan. 473-74. Summary judgment for the University was proper. In Welch v. Centex Home Equity Co., LLC, No. 95,981, 2008 WL 713690, at *6 (Kan. App. 2008) (unpublished opinion), a panel of this court opined that "Finstad does not hold that an aggrieved consumer must be aware of, have relied upon, and be damaged by the deceptive act. Rather, Finstad holds that there must be a causal connection between the defendant's conduct and the plaintiff's damages." Similarly, a panel of this court has held that "[t]o be aggrieved under the statute, the consumer must prove that the seller's act has VOL. 58 COURT OF APPEALS OF KANSAS 507

Hernandez v. Pistotnik adversely affected the consumer's legal rights. Additionally, the consumer must show that there was a causal connection between the deceptive act and the claimed injury. [Citations omitted.]" Schneider v. Liberty Asset Management, 45 Kan. App. 2d 978, 985, 251 P.3d 666 (2011). "A consumer becomes aggrieved when the consumer suffers legal harm, even if he or she fails to discover or recognize the harm." Florez v. Ginsberg, 57 Kan. App. 2d 207, Syl. ¶ 6, 449 P.3d 770 (2019). A consumer need not establish measurable monetary damages to qualify as aggrieved. Via Christi Regional Med. Center, Inc. v. Reed, 298 Kan. 503, 519, 314 P.3d 852 (2013). But consumers must still show that their damage relates to the alleged misrepresentation. See Schneider, 45 Kan. App. 2d at 986. Yudi must therefore show that she was legally harmed and that her harm was causally connected to Brad's advertising to sus- tain a triable KCPA claim. See Welch, 2008 WL 713690, at *6. Although Yudi's claims of harm are unclear, she seemingly argues that her injuries are twofold: her hiring AAPLO based on Brad's misrepresentations, and Brian's filing of an attorney's lien. We first address the lien. Yudi does not explain how the filing of the lien legally harmed her. An issue not briefed is considered waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018). Filing an attorney's lien is permitted by law. Yudi admits that Brad waived his interest in the lien, and that Brian never asked for a hearing to determine the lien's validity or to enforce the lien against her. Instead, Brian later filed a separate lawsuit to recover the amount sought in that lien. Yet, as Yudi admits, she is not a defendant in that case. Yudi does not allege that the lien itself contained any misrepresentations; instead, the lien notice did not include an itemization of litigation expenses or mention fax or copy charges. And nothing shows that Yudi has ever paid AAPLO or either defendant any part of the amount sought in the lien. Yudi received all the personal injury settlement funds she was due, despite the lien having been filed. Therefore, Yudi fails to show a material issue of fact that the mere filing of the lien harmed her. Harm must thus be found, if at all, in Yudi's hiring AAPLO. We assume, without deciding, that sufficient harm may be established under the KCPA when a client relies on misrepresentations in an attorney's advertisements in selecting a lawyer and is thus 508 COURT OF APPEALS OF KANSAS VOL. 58

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"gulled out of a fair opportunity to select a different lawyer." Con- solver v. Pistotnik, No. 115,197, 2017 WL 2715122, at *3-4 (Kan. App. 2017) (unpublished opinion) (finding that the decision to choose representation in such a manner "may be enough" to establish the injury needed to succeed on a KCPA claim). But that is not what happened here. Yudi cannot establish that she relied on the representations made in Brad's advertisements in deciding to retain AAPLO—she was incapacitated when her father made that decision. She played no part in that decision. And even if we assume the viability of an indirect reliance theory under the KCPA, Yudi fails to show that Brad's advertisements played any part in Ernesto's decision to hire AAPLO. Ernesto selected AAPLO on Yudi's behalf because Mirna advised him to. Whether Mirna chose AAPLO because she saw Brad's television advertisements or instead because her friend recommended Brad matters not. No evidence suggests that Mirna conveyed to Ernesto any information about Brad's advertisements. For an indirect reliance theory to work, that, at least, is necessary. Without either direct or indirect reliance, Yudi fails to show any causal connection between Brad's allegedly deceptive advertising and her claimed harm of not having a fair opportunity to choose a different lawyer. In apparent recognition of her inability to show reliance, Yudi argues none is required under the KCPA. But Yudi must show some adverse effect on her legal rights, and some causal connection between the deceptive act and her claimed injury. As stated above, she has failed to do so.

The Remaining Miscellaneous Allegations Are Immaterial

Yudi briefs several miscellaneous arguments about her KCPA claim. She argues that whether Brad was involved in asserting the lien is a question of fact for the jury. But since Yudi has shown no harm flowing from the mere assertion of the lien, it does not matter whether Brad was involved. She also asserts that she was aggrieved by an alleged conflict of interest between Ernesto and Brian. But Yudi failed to provide the district court with evidence of a conflict of interest and now fails to argue how that alleged conflict caused her injury. Finally, Yudi argues that Brian kept a VOL. 58 COURT OF APPEALS OF KANSAS 509

Hernandez v. Pistotnik personal injury protection (PIP) check for $4,500 as a "retaining lien" without her knowledge or consent. But Yudi fails to cite the record to support her allegation that AAPLO inappropriately kept a PIP check. And our review of the record reveals no such evidence, other than Yudi's testimony stating AAPLO did not notify her of the existence of a PIP check and did not disburse the funds to her. For these reasons, we find Yudi's miscellaneous allegations immaterial to our decision upholding summary judgment on her KCPA claim. Similarly, we find it unnecessary to address Brad's argument that Yudi's KCPA claim is precluded by the doctrine of prevention because AAPLO would have recovered money for her, but for Ernesto's decision to terminate the firm.

Did the District Court Err in Granting Summary Judgment on Yudi's Fraud Claim?

Next Yudi argues that the district court erred in granting summary judgment on her fraud claim. She argues, as she did regarding her KCPA claim, that the district court misapplied the applicable law, ignored genuine issues of material fact, and failed to resolve inferences in her favor. Brad argues that because Yudi failed to plead fraud with particularity and failed to show the required reliance, the district court correctly granted summary judgment in his favor.

Preservation Issue Raised by Yudi

We must first address a procedural issue—Yudi's assertion that Brad's argument is not preserved for appellate review. Yudi argues that Brad had to file a cross-appeal for his claim that Yudi failed to plead fraud with the requisite particularity. We disagree. Although K.S.A. 2019 Supp. 60-2103(h) requires an appellee to file a notice of cross-appeal from adverse rulings to obtain appellate review of those issues, Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016), the district court did not rule adversely to Brad. And Brad does not ask this court to remedy something the district court explicitly rejected. That said, we choose to focus our discussion on the evidence, as did the district court, instead of on the pleadings.

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Basic Legal Principles

An actionable fraud claim is one that involves an untrue statement of material fact, known to be untrue, made with the intent to deceive or with reckless disregard for the truth and on which another party justifiably relies to his or her detriment. See Alires v. McGehee, 277 Kan. 398, 403, 85 P.3d 1191 (2004); PIK Civ. 4th 127.40. Fraud must be proven by clear and convincing evidence. See Waxse v. Reserve Life Ins. Co., 248 Kan. 582, Syl. ¶ 3, 809 P.2d 533 (1991). But "a party resisting a motion for summary judgment in an action based upon fraud need not present 'clear and convincing evidence' of fraud in opposing the motion." Dugan v. First Nat. Bank in Wichita, 227 Kan. 201, 207, 606 P.2d 1009 (1980). Generally, the Kansas Rules of Civil Procedure permit notice pleading. This means a pleading is sufficient if it contains "[a] short and plain statement of the claim showing that the pleader is entitled to relief" and a demand for judgment. K.S.A. 2019 Supp. 60-208(a). But an exception applies in pleading fraud. Under K.S.A. 2019 Supp. 60-209(b), when pleading fraud, the circumstances constituting fraud must be stated with particularity: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person's mind may be alleged generally." K.S.A. 2019 Supp. 60-209(b). We strictly enforce the statutory requirement to plead fraud with particularity. See Palmer v. Brown, 242 Kan. 893, 901, 752 P.2d 685 (1988).

Yudi's Petition

In her amended petition, Yudi alleged these actions were fraudulent:

 "The Defendants' representation that photocopies were a 'litigation expense' and it cost $0.22 to make one was a false representation of a statement of material and existing fact."  "The Defendants' representation that sending a fax was a 'litigation expense' and cost $1.00 per fax to send one was VOL. 58 COURT OF APPEALS OF KANSAS 511

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a false representation of a statement of material and existing fact."  "The Defendants' representation that the Plaintiff owed them any money at all for legal fees was a false representation of a statement of material and existing fact."  "The Defendants' failure to attach any documents supporting the figures set forth in the lien served on the Plaintiff was a willful omission of material fact."  "The false statements that have been made by the Defend- ants in a wide variety of advertisements for at least ten years—including but not limited to claiming they had achieved 'verdicts and settlements' that they did not obtain and telling potential clients that if they did not recover money for them, they did not owe a fee—were false statements of material and existing fact."

Yudi also referenced, among other things, an alleged conflict of interest, the lien asserted against any personal injury proceeds, and the lack of information about how the fees were calculated. Yudi generally claimed that defendants knew these representations were untrue when made or made them recklessly. She claimed that the representations were made to induce her to act, and that she reasonably relied and acted on them. As for the advertisements, Yudi claimed: "Both Defendants knew that the statements that appeared in their advertisements were not accurate and both knew that there was no way those that saw them could have discovered the statements were not true through due dili- gence." Yudi also claimed that she

"sustained damages as a result of the Defendant's failure to communicate these material facts to her in a timely manner and, had they done so, she would have never (a) believed that the Defendants had the legal skills to get large verdicts such as the ones they advertised and would not have used them for legal services at all after that[,] had she known they did not; (b) had she settled her personal injury claim, any proceeds due to her would have been encumbered and she would not have been able to use them for any purpose until such time as the lien was resolved and, had the Defendant's proved successful, she would have had to pay over $50,000 for phony legal fees and 'costs'."

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Yudi Fails to Establish Direct or Indirect Reliance

Brad argues that Yudi failed to produce evidence that she or Ernesto saw any AAPLO advertisement that included a fraudulent representation before Ernesto retained the firm. Thus, Yudi cannot establish that she relied on the fraudulent statement or that she was injured as a result of that reliance. As explained below, we agree with the district court that Yudi failed to establish reliance. In her amended petition, Yudi claimed that she relied on the alleged misrepresentations. But no evidence creates a genuine issue of material fact on that issue. Yudi did not plead indirect reliance and does not raise indirect reliance in her appellate brief. Yudi explained that her father hired AAPLO, yet she did not allege that he relied on any misrepresentation in making that decision. Likewise, Yudi does not argue that she indirectly relied on the misrepresentations she claims existed in Brad's advertisement on appeal. An issue not briefed is considered waived or abandoned. Arnett, 307 Kan. at 650. Thus, summary judgment was proper even assuming the legal validity, generally, of the indirect reliance theory. But this is not a mere pleading problem. Yudi fails to show that Ernesto's reliance could have been imputed to her, even assuming that an indirect reliance theory applies. Yudi fails to show facts suggesting that Ernesto relied on Brad's advertisement. Ern- esto—and not Mirna—was Yudi's agent. Yudi fails to provide pertinent legal authority prescribing a method under which this court could consider Mirna's reliance on Brad's advertisements as sufficient for proof of fraud. Yudi argues that fraud may exist when a misrepresentation is made to a third party if it can be shown that the plaintiff was injured as a result of the misrepresentation. But Yudi fails to cite relevant authority. Although other jurisdictions have adopted that approach, see, e.g., Williams v. Dow Chem. Co., No. 01 CIV. 4307 (PKC), 2004 WL 1348932, at *21 (S.D.N.Y. 2004) (unpublished opinion), Kansas courts have not. Reliance remains required for fraud. Yudi then asserts that under Kansas law, third-party reliance is enough, as it was in Griffith v. Byers Const. Co. of Kansas, 212 Kan. 65, 510 P.2d 198 (1973). But that case is distinguishable. In Griffith, a group of homeowners sued a developer based on the VOL. 58 COURT OF APPEALS OF KANSAS 513

Hernandez v. Pistotnik developer's failure to reveal the high salinity of the land. The developer claimed he could not be sued because he was not in privity with the homeowners and had never met them. The Griffith court rejected that claim, finding "[o]ne who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation or concealment." 212 Kan. at 73. As a result, our Supreme Court held that the developer could be sued for not revealing his knowledge about the soil. That decision, however, dealt with fraud by silence, which is not alleged here. 212 Kan. at 73. Our Supreme Court had no need to discuss the requirement that in cases of third party or indirect reliance on a misrepresentation, that misrepresentation must be conveyed to the plaintiff by someone who received the information from the defendant. We agree that under certain circumstances, a plaintiff may recover for fraudulent misrepresentation under Kansas law where reliance occurred indirectly. The Kansas Supreme Court so held in Citizens State Bank v. Gilmore, 226 Kan. 662, 603 P.2d 605 (1979). There, assuming plaintiff could prove its allegations,

"the defendant Gilmore . . . deliberately set out to sell diseased or exposed cattle to Gaede knowing Gaede was going to obtain financing for the purchase of the cattle from the plaintiff Bank. Plaintiff Bank falls squarely within the rule of the Restatement in that it was a person or within that class of persons that Gilmore had reason to expect to act in reliance on the misrepresentation that the cattle were healthy. The fact that the misrepresentation consisted of a concealment of material facts rather than a material misstatement of facts does not alter the situation. Defendants certainly obtained an advantage ($9,000) by concealing the facts." 226 Kan. at 671.

The court held the plaintiff was a real party in interest, had standing to sue, and had stated a cause of action for fraudulent misrepresentation. 226 Kan. at 671-72; see DeBoer v. American Ap- praisal Associates, Inc., 502 F. Supp. 2d 1160, 1168 (D. Kan. 2007) (noting that a plaintiff could recover for fraudulent misrepresentation under Kansas law when reliance occurred indirectly). The requirements for proof of fraudulent misrepresentation in cases of third party or indirect reliance are clearly stated in Re- statement (Second) of Torts § 533 (1977) (representation made to a third person):

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"Some courts have recognized fraud claims in cases of third party or indirect reliance, but only if plaintiffs establish that (1) they received the information from someone who received it from defendant; (2) defendant intended the information to be conveyed to them and (3) they justifiably relied on the information. Restatement (Second) of Torts § 533 (1977); Citizens State Bank, 226 Kan. at 669-70, 603 P.2d at 611; Turtur v. Rothschild Registry Int'l, Inc., 26 F.3d 304, 310 (2d Cir. 1994). Because plaintiffs have not alleged that they knew of Cess- na's representations to the FAA or to pilots, they cannot establish that they received the information or that they detrimentally relied on it." In re Cessna 208 Series Aircraft Products Liability Litigation, No. 05-MD-1721-KHV, 2009 WL 274509, at *6 (D. Kan. 2009) (unpublished opinion).

We apply those requirements here. Yudi fails to meet the first requirement, as no facts show that Ernesto "received the information from someone who received if from defendant." Ernesto testified that he did not know much of anything about the suit against Brian and Brad. He did not know of any misrepresentations. And no evidence suggests that Ernesto relied on any representations in Brad's advertisements. He hired AAPLO because Mirna told him to. Yet the record does not show that Mirna told Ernesto about the advertisements or otherwise conveyed their substance to him before he hired the firm. Because the record does not show that Yudi could have relied, or Ernesto could have indirectly relied, on Brad's advertisements, Yudi fails to raise a genuine issue of material fact on that necessary element of her fraud claim.

Did the District Court Abuse Its Discretion in Denying Some of Yudi's Discovery Requests?

Yudi next argues that the district court erred in denying her discovery requests for copies of AAPLO settlement agreements with other clients, and for Brad's response to the KDA. We reach these discovery issues because Yudi argues that the information in these documents was crucial to and "likely dispositive" of her claim. Yudi asserts that we should apply a de novo standard of review in deciding this issue. We disagree. Generally, "'[c]ontrol of discovery is entrusted to the sound discretion of the district court, and orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of discretion.'" Kansas Medical Mut. VOL. 58 COURT OF APPEALS OF KANSAS 515

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Ins. Co. v. Svaty, 291 Kan. 597, 618, 244 P.3d 642 (2010). 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. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). We apply that standard here. We first review the district court's finding that Brad's response to a complaint someone made about him to the KDA was not discoverable. Although the district court apparently did not do an in camera inspection before making that determination, the district court is deemed to know the strictures of Kansas Supreme Court Rule 222:

"(a) Confidentiality. All complaints, investigations, reports, correspond- ence, proceedings, and records of the disciplinary administrator and the Kansas Board for Discipline of Attorneys are private and confidential and must not be divulged in whole or in part except as provided in subsections (d), (e), and (f) below or by order of the Supreme Court." (2020 Kan. S. Ct. R. 273).

Suffice it to say that subsections (d), (e), and (f) do not apply here, and no Kansas Supreme Court order to disclose the response was made. See Rule 222(d) (2020 Kan. S. Ct. R. 273) (providing that "[u]pon request, the disciplinary administrator will disclose to the respondent all evidence in the disciplinary administrator's possession. No other discovery will be permitted." [Emphasis added.]). Brad's response to the KDA was confidential and not subject to discovery. Yudi's request for settlement documents falls within more general rules governing discovery in civil cases. Our district courts have supervisory powers over discovery under K.S.A. 2019 Supp. 60-226. Under that statute, the district court "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters." K.S.A. 2019 Supp. 60-226(c)(1)(D). The district court did so here. A district court must follow certain procedures in considering a party's claim that evidence is confidential "when a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discov- 516 COURT OF APPEALS OF KANSAS VOL. 58

Hernandez v. Pistotnik ery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material." Berst v. Chipman, 232 Kan. 180, 187, 653 P.2d 107 (1982). The district court should consider various factors.

"In striking a balance between discovery and nondisclosure, courts should consider '"the nature of the proceeding, whether the deponent is a party, whether the information sought is available from other sources, and whether the information sought goes to the heart of the claim."' Additional factors to [consider] are the degree of harm that would be caused by disclosure, the type of controversy before the court, and the public interest in forbidding discovery. [Citations omitted.]" Rockhill Pain Specialists v. Hancock, 55 Kan. App. 2d 161, 182, 412 P.3d 1008 (2017).

Yudi argues that because the information in the settlement agreements was crucial to and "likely dispositive" of her claim, their importance far outweighs any potential harm in allowing discovery. The district court initially determined that the settlement agreements at issue were relevant, unprivileged, and discoverable. But after Brad claimed the agreements were confidential, the district court conducted an in camera review of the documents. It agreed that the settlements showed they were confidential, and so it limited discovery to the facts that would have determined whether a settlement occurred and in what amount. But the district court's decision lacks any discussion of what factors it considered or how it weighed them. By failing to show it considered the necessary factors, the district court erred. We cannot reweigh evidence on appeal. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514-15, 154 P.3d 494 (2007).

Harmless Error

Nonetheless, we find that error harmless. Yudi did not ask the district court to make specific findings or object to its general ruling. "When there is no objection to a trial court's findings, this court presumes that the trial court found all facts necessary to support its judgment." State v. Jones, 306 Kan. 948, 959, 398 P.3d 856 (2017). And Yudi had other means of obtaining information that Brad had made misrepresentations in his advertisements. Yudi specified only the $9 million representation Brad made, but VOL. 58 COURT OF APPEALS OF KANSAS 517

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Yudi already had Brian's testimony that Brad had not recovered a $9 million judgment, as someone other than Brad had obtained that settlement. And Yudi had Brad's admission to having made an inadvertent misrepresentation about an alleged $2.4 million judgment. We find no reversible error in the district court's handling of these discovery issues.

Did the District Court Abuse Its discretion by Transferring Venue?

Yudi next argues that the district court abused its discretion by transferring venue from Cowley County to Sedgwick County. She claims the Cowley County district judge's decision was swayed by its reliance on a false statement by Brad's attorney. K.S.A. 60-609(a) provides that "[u]pon the motion of a party, a district court may transfer any civil action to any county where it might have been brought upon a finding that a transfer would better serve the convenience of the parties and witnesses and the interests of justice." Under K.S.A. 60-609, a district court has the discretion to grant or deny a party's motion for change of venue. In re Marriage of Yount & Hulse, 34 Kan. App. 2d 660, 663, 122 P.3d 1175 (2005). So, we review the district court's decision to change venue for an abuse of discretion. In her petition and amended petition, Yudi alleged that Brad had sent his false advertisements throughout Kansas including where she resided—in Cowley County. Brad moved to transfer venue to Sedgwick County, arguing "all of the activities took place in Wichita." At the hearing to consider Brad's motion to transfer venue, the district court asked whether Brian was a director at AAPLO. De- fendant's counsel answered that Brian was not, as he was merely an employee and shareholder of AAPLO. Yet the record establishes that Brian was a director at the time. Brad now agrees that his attorney misspoke. Yet, as Brad correctly notes, despite the false representation, the district court found that both Brad and Brian were responsible for AAPLO's advertising. And the district court ruled that it did not believe defendants' advertising in Cowley County was enough 518 COURT OF APPEALS OF KANSAS VOL. 58

Hernandez v. Pistotnik to establish venue. Because the record does not show that the district court relied on Brad's misstatement, Yudi's argument is unpersuasive. The record does show that both Brad and Brian were residents of Wichita and were shareholders of AAPLO, located in Wichita. The contract between AAPLO and Ernesto was signed and negotiated in Sedgwick County. All work that the defendants did for Yudi was done in Sedgwick County. The district court considered all of these facts and found, in addition to what is identified above, that it would be more economical for Yudi to travel to Wichita rather than for all the attorneys to travel to Cowley County. We find no abuse of discretion in the decision to transfer venue to Wichita.

Affirmed. VOL. 58 COURT OF APPEALS OF KANSAS 519

State v. Dunham

___

No. 121,081

STATE OF KANSAS, Appellee, v. JEREMY MICHAEL DUNHAM, Appellant.

___

SYLLABUS BY THE COURT

1. STATUTES—Conflicting Language with Other Statutes—Context to Give Meaning. Even when the language of a statute is clear, an ambiguity can arise when the language conflicts with other statutes. In these situations, text alone is only the beginning. Context is necessary to give a more precise meaning.

2. SAME—Conflicting Statutes—Court's Duty to Reconcile for Consistency. When faced with statutes that appear to conflict, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.

3. CRIMINAL LAW—Sentencing—Multiple Sentences Imposed Same Day— Judge's Discretion. When multiple sentences in different cases are imposed on the same day, a judge has the discretion to impose concurrent or consecutive sentences regardless of the mandatory provisions of K.S.A. 2019 Supp. 21-6606(c), (d), and (e).

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 31, 2020. Affirmed in part, vacated in part, and remanded with directions.

James M. Latta, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.

ARNOLD-BURGER, C.J.: Jeremy Michael Dunham pled guilty or no contest to drug crimes charged in five cases. The last three cases arose from conduct that occurred while he was on probation for the first two. The district court eventually revoked his probation and ran the sentences in his last three cases consecutive to the first and second cases and to each other. Dunham raises two issues:

Did the district court err by concluding the law obligated it to run the sentences in two of his last three cases consecutively? Yes.

520 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham

Did the district court abuse its discretion by revoking his probation in the first two cases because drug treatment would better address his addiction? No.

FACTUAL AND PROCEDURAL HISTORY

Jeremy Dunham pled guilty or no contest to drug charges in five cases. These will be referred to as Case 1 (16CR523), Case 2 (17CR231), Case 3 (18CR295), Case 4 (18CR 293), and Case 5 (19CR08). The last four cases are felonies. Dunham received probation in his first two cases, but he committed additional crimes while on probation, leading to three more cases. He was on felony release status when he committed Cases 4 and 5. The district court, on the same day, revoked his probation in the first two cases and imposed prison sentences in his last three cases. The court ran the sentences in Cases 4 and 5 consecutive to each other and consecutive to Case 3, believing Kansas law required that result. Additional facts will be provided as necessary.

ANALYSIS

Dunham raises two issues on appeal. First, he asserts that the district court erred when sentencing him in three of his five cases because it believed it lacked discretion to impose the sentences concurrently. Second, he claims that the district court abused its discretion by revoking his probation on his first two cases because treatment would better address his addiction than imprisonment.

The district court erred in finding that it had no discretion to impose Dunham's sentences in Cases 3, 4, and 5 concurrent to each other.

Dunham argues that he received an illegal sentence because the district judge erroneously concluded that he was required by operation of law to run Dunham's sentences in Cases 4 and 5 consecutive to each other—or one after the other. Dunham does not dispute the court's decision to run the sentences in Cases 3, 4, and 5 consecutive to his sentences in Cases 1 and 2. He also does not challenge the decision to run the two counts in Case 3 consecutive to each other. And finally, the parties agree that Dunham was on VOL. 58 COURT OF APPEALS OF KANSAS 521

State v. Dunham felony release (bond) when he committed the offenses in Cases 4 and 5. By running the cases consecutively, the district court imposed a 91-month prison sentence. But as Dunham points out, the court's last order of consecutive sentences for Cases 3, 4, and 5 was not without confusion. The district judge initially ordered Cases 3 and 4 to run consecutively to each other. Defense counsel then argued the district judge was not required to run Cases 3 and 4 consecutive, and the district judge agreed, ordering those cases to run concurrently to each other and consecutive to everything else. He then changed course when the prosecutor advised him that by operation of law Cases 3 and 4 were consecutive to each other. If the sentences in Cases 3 and 4 were served concurrently—or at the same time— Dunham would have received a total sentence of 71 months in prison. The court also ordered Case 5 to run consecutive to Cases 3 and 4. Although Dunham did not challenge that before the district court, on appeal, he challenges that order for the same reason— that the court was not required by law to order he serve the sentences consecutive to each other. If Case 5 was also ordered to run concurrently, his total sentence would be 51 months. To determine if Dunham is correct, we need to examine the law related to concurrent and consecutive sentencing in felony cases such as this.

We examine the interpretation of statutory language de novo.

The interpretation of statutes is a question of law over which appellate courts exercise unlimited review. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018); State v. Keel, 302 Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015). Courts attempt to effectuate the Legislature's intent when interpreting statutes. 302 Kan. 560, Syl. ¶ 5. Courts begin this search for intent by looking at the plain meaning of the statute, giving common words their ordinary meanings. 302 Kan. 560, Syl. ¶ 6. If a statute is plain and unambiguous, courts need not resort to judicial canons of construction; the inquiry ends. 302 Kan. 560, Syl. ¶ 6. But even when the language of a statute is clear, an ambiguity can arise when the language conflicts with other statutes. In these situations, text alone is only the beginning. Context is necessary 522 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham to give more precise meaning. So we apply the canons of statutory construction, legislative history, and context to determine legislative intent. Rather than isolating a particular provision, we must examine the statutory scheme, considering "various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible." State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710 P.2d 25 (1985) ("To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible.").

We examine the statutes and caselaw related to concurrent and consecutive sentences.

In 1964, the Kansas Legislature adopted the common-law rule that if two sentences are imposed at the same time, they run concurrently unless the court expressly states that they are to be served consecutively. See Beck v. Fetters, 137 Kan. 750, 751-52, 22 P.2d 479 (1933) (setting out the common-law rule); see also State v. Quested, 302 Kan. 262, 352 P.3d 553 (2015) (providing a historical summary of Kansas sentencing laws, federal sentencing laws, and the common law). In other words, judges had complete discretion to order sentences to be served concurrently or consecutively in all cases, with the default being concurrent. L. 1963, ch. 306, § 1. But significant changes were made to the statute in 1982. The changes and the reasons for them were set out by the Supreme Court in State v. Reed, 237 Kan. 685, 687-88, 703 P.2d 756 (1985). The amendments set out situations in which consecutive sentences would be required. The sole issue in Reed was whether mandatory consecutive sentences were required under one of these new provisions, K.S.A. 1984 Supp. 21-4608(4). The new subsection provided that when a person commits a new offense while released on bond, the sentence on the new offense must run consecutive to the offense for which the defendant was on bond. Because Reed committed two felonies after having been released on bond pending trial in another case, the district court held that consecutive sentences were mandatory, and the Supreme Court agreed. VOL. 58 COURT OF APPEALS OF KANSAS 523

State v. Dunham

"It should be noted that under the pre-1982 statute, the imposition of concurrent or consecutive sentences in all criminal cases was placed within the sound discretion of the trial court, and mandatory consecutive sentences were not required in any case. In 1982, there was a great deal of public concern because felonies were being committed by persons who had previously been charged with a felony while they were released on bond in a prior felony case. The legislature at the 1982 session enacted what is now K.S.A. 1984 Supp. 21- 4608 to require mandatory consecutive sentences in certain cases. 21-4608(2) was amended so as to be applicable only to misdemeanors. Thus, in misdemeanor cases the imposition of concurrent or consecutive sentences remained within the sound discretion of the trial court. "The 1982 legislature added what are now sections (3), (4), and (5) of K.S.A. 1984 Supp. 21-4608 which provide as follows: '(3) Any person who is convicted and sentenced for a crime committed while on probation, parole or conditional release for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation or released. '(4) Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve the sentence consecutively to the term or terms under which the person was released. '(5) Any person who is convicted and sentenced for a crime committed while such person is incarcerated and serving a sentence for a felony in any place of incarceration shall serve the sentence consecutively to the term or terms under which the person was incarcerated.' "In order to determine the legislative intent, it is necessary to analyze care- fully these sections. Section (3) requires consecutive sentences where a defendant is convicted and sentenced for a crime committed while on parole, probation, or conditional release for a felony. "Section (4) requires consecutive sentences where a defendant is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated. To interpret this section, we must consider the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated. K.S.A. 22-2801 et seq. covers release of persons charged with crime in three situations: (1) Release pending an appearance to answer charges; (2) release pending an appearance to testify; and (3) release pending appeal, when detention neither serves the ends of justice nor the public interest. That purpose is clearly set forth in K.S.A. 22-2801. K.S.A. 22-2802 governs release prior to trial. K.S.A. 22-2804 covers release after conviction, where a defendant is either awaiting sentence or has filed a notice of appeal. "K.S.A. 1984 Supp. 21-4608(5) covers situations where a defendant is convicted and sentenced for a crime committed while such person is incarcerated and serving a sentence for a felony in any place of incarceration. The above analysis of sections (3), (4), and (5) is important, because it shows a clear legislative intent to cover the waterfront and to require consecutive sentences where a defendant commits a felony while released on bond in a prior felony case, whether at the beginning of the prosecution prior to trial or at the end of the trial 524 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham or after the defendant has been sentenced or after defendant is placed on probation or parole or conditional release or while incarcerated." 237 Kan. at 687-88.

Although the court agreed that Section 4 was not as clear as it could be, the legislative intent was clear that consecutive sentences are required under any of the listed situations—pending appearance to answer charges, pending appearance to testify, and pending appeal. 237 Kan. at 690. Eight years later, the Supreme Court was faced with the same issue in a slightly different context in State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993). Interpreting the same version of the statute as addressed in Reed, the Supreme Court discussed the issue of concurrent and consecutive sentences as they relate to a suspended sentence. 252 Kan. at 869-70; see K.S.A. 1992 Supp. 21- 4608(3). Edwards was serving a suspended sentence for conspir- ing to possess cocaine when he was found guilty of second-degree murder. On the same day, his suspended sentence was revoked, he was resentenced on the conspiracy to possess cocaine charge, and he was also sentenced on the second-degree murder charge. The district judge found that K.S.A. 1992 Supp. 21-4608(3) controlled and believed that consecutive sentences were mandatory. Edwards appealed, arguing that the court had the discretion to impose a concurrent sentence. The Supreme Court sided with Edwards. The court focused on the first paragraph of the statute, K.S.A. 1992 Supp. 21-4608(1):

"'(1) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as provided in subsections (3), (4) and (5).'" 252 Kan. at 868.

It interpreted the last sentence as follows:

"The last sentence in K.S.A. 1992 Supp. 21-4608(1) which states 'except as provided in subsections (3), (4) and (5)' applies only when the record is silent as to whether the sentences are to run concurrently or consecutively. Here, the record is not silent as to how the sentences shall be served. The trial court stated the sentences herein would be consecutive to that of the cocaine sentence." 252 Kan. at 869. VOL. 58 COURT OF APPEALS OF KANSAS 525

State v. Dunham

But because the district judge believed he had no choice but to impose consecutive sentences by operation of K.S.A. 1992 Supp. 21-4608(3), the judge erred.

"The legislature may well have intended to make consecutive sentencing mandatory under the circumstances herein, but the clear language of the statute does not so indicate. Under such circumstances there is no room for judicial construction. Subsection (1) is a specific statute applied when all involved sentences occur, as here, on the same date and take precedence over subsection (3) of said statute. "The trial court did not exercise discretion in determining under subsection (1) whether to impose the sentences concurrently or consecutively. Rather, the trial court imposed consecutive sentences on the basis such was mandatory under subsection (3). We conclude the sentences herein must be vacated and the case remanded for resentencing." 252 Kan. at 870.

The Supreme Court further explained its decision in Edwards five years later in State v. Koehn, 266 Kan. 10, 12, 966 P.2d 63 (1998). Koehn was sentenced on a new case at the same time his probation was revoked on another case. The district court ran the sentence on the new case consecutive to the cases for which his probation was revoked, believing it was required to do so. Koehn argued on appeal that based upon Edwards, the court had the discretion to impose a concurrent or consecutive sentence under K.S.A. 21-4608(a). The Supreme Court rejected Koehn's argument by distinguishing Edwards. It noted that K.S.A. 21-4608(a) applied in Ed- wards because he was sentenced on multiple cases on the same day. 266 Kan. at 12. Although his sentence on the first case was suspended, the court resentenced him on that charge. In Koehn's case, however, he was not subject to being sentenced to multiple cases on the same day. His probation was revoked on the same day, but the court simply ordered Koehn to serve a sentence that had already been imposed. No new sentence was imposed. So Koehn only had a sentence imposed on one case, not multiple cases. Accordingly, K.S.A. 21-4608(a) did not apply. Instead, K.S.A. 21-4608(c) independently required consecutive sentencing. 266 Kan. at 13. So, as the Reed court noted, "Section (3) [now (c)] requires consecutive sentences where a defendant is convicted and sentenced for a crime committed while on parole, probation, 526 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham or conditional release for a felony." 237 Kan. at 688. The approach taken in Koehn was repeated several years later in Love v. State, 280 Kan. 553, 124 P.3d 32 (2005). Love was sentenced for first-degree murder, which he committed while on parole for an earlier case. The judge made no mention of his parole at sentencing. Later, the judge entered a nunc pro tunc order requiring the murder sentence be served consecutive to the previous parole sentence. Love argued this was an illegal and harsher sentence than he had originally received. The Su- preme Court disagreed and found that the court was required by statute, specifically K.S.A. 1996 Supp. 21-4603d, K.S.A. 21- 4608(c), and K.S.A. 1996 Supp. 21-4720(a), to order the new sentence to run consecutively unless it made a finding of manifest injustice. 280 Kan. at 558-60.

With the statutes and their context in mind, we apply the applicable statutes to the facts of this case.

First, we accept the parties' agreement that Dunham committed the felonies in Cases 4 and 5 while on felony release. So the next question is whether he was sentenced to multiple distinct cases on the same day. He was. Dunham had multiple sentences imposed on different cases on the same day. In the case of multiple sentences, Edwards guides our decision. Edwards informs us that the court has complete discretion under K.S.A. 1992 Supp. 21-4608(1) (now codified at K.S.A. 2019 Supp. 21-6606[a]) to run the sentences either consecutively or concurrently. That is, K.S.A. 2019 Supp. 21-6606(c), (d), and (e) play no role in multiple sentencing cases unless the sentencing court fails to address whether the multiple sentences run concurrently or consecutively. Edwards' interpretation of the previous version of K.S.A. 2019 Supp. 21-6606(a) thus allows a court flexibility—regardless of the sentence ordered in any individual case (such as consecutive prison terms included in the sentence for Case 3)—to run the sentences in multiple cases concurrently or consecutively as the court finds appropriate. Because Dunham was sentenced for multiple crimes on the same day, the court erred in finding that it was required to run the sentences consecutively. See State v. LaGrange, 21 Kan. App. 2d VOL. 58 COURT OF APPEALS OF KANSAS 527

State v. Dunham

477, 484, 901 P.2d 44 (1995) (when a defendant is sentenced for separate crimes on the same date, the court has discretion to run the sentences concurrently or consecutively under K.S.A. 21- 4608[1]); State v. Owens, 19 Kan. App. 2d 773, 774-77, 875 P.2d 1007 (1994) (holding, based on Edwards, the court was not required under 21-4608[1] to impose consecutive sentences when Owens was sentenced in multiple cases at the same time, irrespec- tive of the mandatory language of K.S.A. 21-4608[4]). We note Edwards is still good law and we are duty bound to follow Su- preme Court precedent unless there is some indication that the Kansas Supreme Court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). As in Edwards, this case must be remanded to allow the district court to exercise its discretion in determining whether Dunham's sentences in Cases 4 and 5 should run concurrently or consecutively with each other and with Case 3.

We briefly consider and reject the State's arguments.

We have rejected the State's arguments in support of the district court's finding that it was required to impose consecutive sentences for three reasons. First, the State makes no mention of Edwards, Koehn, La- Grange, or Owens in its appellate brief. A party has a duty to show why their position is sound in spite of contrary authority. Failure to do so results in abandonment of the argument. See State v. Ber- riozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Second, the State puts all its eggs in the basket of State v. Al- Bureni, No. 119,274, 2019 WL 985979 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1063 (2019). But one Kansas Court of Appeals panel is not bound by another panel's decision. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018). Each panel conducts an independent analysis of the issues presented and comes to its own conclusions. Moreover, pursuant to Supreme Court Rule 7.04(g)(2)(A) (2020 Kan. S. Ct. R. 45), an unpublished memorandum opinion is not binding precedent, except as may occur through the doctrines of law of the case, res judicata, or collateral estoppel. Third, Al-Bureni is distinguishable from this case. First, Al- Bureni was a single sentence case. The State filed an interlocutory 528 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham appeal in Al-Bureni after the district court ran the defendant's subsequent felony, which he committed while on release, concurrent to his original felony conviction. The Court of Appeals reversed, finding K.S.A. 2017 Supp. 21-6606(d) mandates consecutive sentences. 2019 WL 985979, at *5. Al-Bureni was sentenced only to his current crime of conviction. He had already been sentenced on the felony for which he was on release. So based on Reed, Koehn, and Love, the mandatory consecutive sentencing provision of K.S.A. 2017 Supp. 21-6606(d) would apply. But the panel was faced with a conflicting provision at K.S.A. 2017 Supp. 21- 6604(f)(4), which provides that when a person commits a new felony while on release for a felony, "'a new sentence may be imposed consecutively pursuant to the provisions of K.S.A. 2017 Supp. 21-6606.'" Al-Bureni, 2019 WL 985979, at *3. That conflict does not arise in a multiple sentencing case, as Edwards directs that multiple sentencing cases are governed by K.S.A. 2019 Supp. 21-6606(a), not K.S.A. 2019 Supp. 21-6606(c), (d), or (e). So we do not reach the question considered by the panel in Al-Bureni. And we will leave our interpretation of K.S.A. 2019 Supp. 21- 6604(f)(4) and its interaction with K.S.A. 2019 Supp. 21-6606(d) for another day in a single sentence case. Accordingly, we vacate the district court's order running the sentences consecutively and remand for the court to use its discretion in deciding whether the sentences in Cases 4 and 5 should be consecutive to or concurrent with each other and to Case 3.

The district court did not act unreasonably by revoking Dunham's probation.

Dunham committed three felony drug crimes while on probation for two drug crimes, one misdemeanor and one felony. When sentencing him for the new crimes, the court revoked his probation on the older crimes and ordered him to serve the underlying sentences. He believes the court's decision was unreasonable. A court may revoke probation if a person commits a new felony while on probation. K.S.A. 2018 Supp. 22-3716(c)(8)(A). A probation violation must first be established by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Once sufficiently established, the decision to revoke VOL. 58 COURT OF APPEALS OF KANSAS 529

State v. Dunham lies within the court's discretion. 281 Kan. at 1170. We review a probation revocation for an abuse of discretion. Relevant here, a court abuses its discretion if no reasonable person would have taken the court's position. 281 Kan. at 1170. Approximately six months after receiving probation in his first two cases, Dunham committed two more felony drug crimes. Several months after that, he committed yet another drug crime. He pled no contest and was found guilty of the new drug crimes. This established a violation of his probation by a preponderance of the evidence. So revoking Dunham's probation was within the court's discretion. Dunham argues that the court abused its discretion; he contends that his need for drug treatment made the decision to impose a prison sentence unreasonable. He does not cite any law that com- mands this result. Instead, he relies on a law review article that notes incarceration makes future drug use more likely and treatment is more effective in stopping drug use and conserving re- sources. Given the detriments of imprisoning people with drug abuse problems, the district court should have given Dunham an intermediate sentence. We begin by recognizing that Dunham's assertions are probably true, and strong policy considerations counseling against imprisoning nonviolent drug offenders certainly exist. K.S.A. 2019 Supp. 21-6601 reflects such a sentiment. But the district court's decision was not so unfounded that no reasonable person would support it. The court, while acknowledging Dunham's addiction issues, found he had not taken advantage of his probation oppor- tunities; instead, he engaged in conduct resulting in convictions for drug crimes in three additional cases. The evidence supports that finding. The district court had already imposed an intermediate sanction of 60 days when Dunham violated his probation in his first misdemeanor drug case—Case 1—by being charged with his second—this time felony—drug case—Case 2. Due to a desire to make sure he obtained the necessary treatment, the court granted Dunham's request for a dispositional departure to probation on Case 2. He obtained two new cases in short succession, each involving possession of methamphetamine—Cases 3 and 4. While those cases were pending sentencing, Dunham failed to appear in 530 COURT OF APPEALS OF KANSAS VOL. 58

State v. Dunham court, and he was subsequently arrested on a bench warrant and taken to jail, where it was discovered he had methamphetamine in his possession—resulting in his final drug case—Case 5. At some point, a court must determine whether a person is amenable to treatment and probation. Whether that occurs after the first, third, or fifth violation, that discretion rests with the district court judge. And unless the district court has made a legal or factual error (which Dunham has not claimed here) we will set aside its discretionary decision only if no reasonable person could agree with it. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). We see nothing unreasonable here. The facts support the district court's conclusion that Dunham was no longer amenable to probation. Accordingly, we find no error in its decision to revoke his probation and order him to serve his remaining underlying sentences on his first two cases. Affirmed in part. We vacate the sentences in Case 4 (18CR293) and Case 5 (19CR08) and remand for sentencing consistent with this opinion.

Affirmed in part, vacated in part, and remanded with directions. VOL. 58 COURT OF APPEALS OF KANSAS 531

Chalmers v. Burrough

___

No. 121,108

ALMARIO v. CHALMERS, Appellant, v. BRITTANY BURROUGH, Appellee.

SYLLABUS BY THE COURT

1. UNIFORM INTERSTATE FAMILY SUPPORT ACT—Uniform Proce- dure for Child Support and Spousal Support. The Kansas Legislature—and other state legislatures—enacted the Uniform Interstate Family Support Act (UIFSA) to establish a uniform, nationwide procedure for issuing, modifying, and enforcing child and spousal support.

2. SAME—Purpose of UIFSA—Only One Valid Support Order Effective At One Time. UIFSA was adopted to prevent the issuance of multiple support orders by different jurisdictions as families move between and interact with different states. To prevent the issuance of overlapping or conflicting orders, UIFSA establishes a one-order system whereby all states that have adopted UIFSA recognize and enforce the same obligation consistently. The goal of this uniform structure is to ensure that only one valid support order may be effective at one time.

3. SAME—Exclusive Jurisdiction to Establish and Modify Child Support— Requirements for Enforcement. UIFSA adopts the principle of continuing, exclusive jurisdiction to establish and modify child support. Under this framework, Kansas courts may enforce out-of-state orders concerning child support at any time, as long as they have personal jurisdiction over the parties and the out-of-state order is properly registered according to the procedures set forth in the Act. But a Kansas court does not have jurisdiction to establish or modify child-support obligations in a case originally filed in another state unless continuing, exclusive jurisdiction over that case is first transferred to Kansas.

4. SAME—Statutory Requirements for Modifying Another State's Child Sup- port Order. K.S.A. 2019 Supp. 23-36,611 includes various requirements that must be met before a Kansas court can modify another state's child- support order. That statute, however, only authorizes a court to modify such an order if it is first registered in this state.

5. SAME—Statutory Requirements for Registering Out of State Support Or- der. K.S.A. 2019 Supp. 23-36,602(a) sets forth the procedure for registering an out-of-state support order in Kansas under UIFSA and requires, among other things, that a party attach "two copies, including one certified copy, of the order to be registered, including any modification of the order."

6. JURISDICTION—Subject Matter Jurisdiction—Appellate Review. Whether the district court had subject-matter jurisdiction to hear the case is a question of law appellate courts review de novo. 532 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

7. UNIFORM INTERSTATE FAMILY SUPPORT ACT—Affirmative De- fenses Apply to Validity of Order. UIFSA's limitations on affirmative defenses only apply when someone is contesting the validity or enforcement of a registered order. Those limitations do not apply when someone is challenging the effectiveness of the underlying registration.

8. JURISDICTION—Subject Matter Jurisdiction May Be Raised Sua Sponte. Questions of subject-matter jurisdiction may be raised at any time, including by the court sua sponte. Unlike personal jurisdiction, which concerns the court's authority over the parties and may therefore be waived, subject- matter jurisdiction goes to the power of a court to hear and decide a case. Parties cannot bestow the power to hear a case on a court when that authority does not otherwise exist, so subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel.

9. UNIFORM INTERSTATE FAMILY SUPPORT ACT—Procedural Re- quirements to Register Out of State Order. Under UIFSA's procedural requirements, a Kansas court has no authority to modify child-support obligations in an out-of-state case until the out-of-state order is properly registered under K.S.A. 2019 Supp. 23-36,602. Until then, the original, issuing court has continuing, exclusive jurisdiction over the case. Thus, proper registration of an out-of-state order of child support is a jurisdictional prerequisite that must be satisfied before a Kansas court can take any action on that order.

10. SAME—Substantial Compliance with UIFSA's Registration Requirements. Though strict compliance is not necessary, a party still must substantially comply with UIFSA's registration requirements before a Kansas court can take any action concerning an out-of-state child-support order.

11. SAME—Registration Requirements—Out of State Order Must Be Attached to Petition. The controlling out-of-state order is the focus of a modification or enforcement proceeding under UIFSA. Without a copy of that order, the district court cannot know its contours. A party who fails to attach the out- of-state order to his or her petition to register that order has not substantially complied with UIFSA's registration requirements.

Appeal from Sedgwick District Court; LINDA KIRBY, judge. Opinion filed July 31, 2020. Affirmed.

Jeffrey N. Lowe, of Lowe Law, LLC, and Jessica F. Leavitt, of Stinson, Lasswell & Wilson, LC, of Wichita, for appellant.

Cheryl J. Roberts, of Wichita, for appellee.

Before ATCHESON, P.J., WARNER, J., and WALKER, S.J.

VOL. 58 COURT OF APPEALS OF KANSAS 533

Chalmers v. Burrough

WARNER, J.: As families move from state to state, courts are often asked to enforce or modify child-support obligations that arose elsewhere. While it is important that courts have the ability to address these families' needs, that practice raises the possibility of overlapping or inconsistent child-support orders issued in different states. To solve this conundrum, legislatures in all 50 states have adopted the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, only one state's courts have exclusive subject-matter jurisdiction over the parties' support obligations at a given time. To transfer that exclusive jurisdiction to a court in a different state, a party must register the order in the new state in accordance with UIFSA and then meet other procedural requirements. In this case, Almario Chalmers attempted to register and then modify a Florida child-support order in Kansas (where his daughter and her mother live). The Kansas district court initially confirmed registration of the Florida order and modified Chalmers' child-support obligation. But it later set aside both orders and dismissed the case because Chalmers did not substantially comply with UIFSA's registration requirements. We affirm that dismissal, as the failure to properly register the order under UIFSA prevented the Kansas court from ever acquiring jurisdiction to hear the case.

FACTUAL AND PROCEDURAL BACKGROUND

A Florida district court ordered Chalmers to pay Brittany Bur- rough child support in 2015 for the care of their daughter. The amount of child support was based on Chalmers' income while he played basketball for the Miami Heat of the National Basketball Association. Chalmers retired from the NBA in November 2018 and moved out of Florida. Burrough and the child are Kansas residents. Chalmers wanted to reduce his monthly child-support obligation after his change in employment, but he was no longer a Flor- ida resident and could not do so in Florida. In October 2018, Chalmers filed a petition to register and modify the Florida child- support order in Kansas under UIFSA. The petition to register the Florida order included its date and case name. It stated Chalmers was current with his child-support obligations and that there was no known arrearage. The petition 534 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough also indicated that "Two (2) copies of the Child Support Order sought to be registered [were] included with this Petition, one of which is certified." But no copies of the Florida support order were actually attached to the petition. Chalmers provided copies of this petition to Burrough, along with a "Notice of Registration of Support Order Under [UIFSA]." This notice included a paragraph titled "Automatic Confirmation," stating, "If you do not contest the validity or enforcement of the registered order within twenty (20) days, this order will automati- cally be confirmed by operation of law." Burrough did not contest the petition within 20 days of receiving these materials. On the 20th day, Chalmers requested—and the district court entered—a journal entry registering the Florida order in Kansas. The journal entry stated, "By operation of the law, this Court ac- cepts registration of the attached Order of the State of Florida, Miami-Dade County Judicial Circuit, Case Number 10-19606 . . . under the provisions of the Uniform Interstate Family Support Act (UIFSA)." (Emphasis added.) One week later, the district court temporarily modified Chalmers' support obligation "by agreement of the parties." The court ordered a hearing on Chalmers' request for permanent modification of his child-support obligation after the Thanksgiving holiday and noted that Burrough had failed to contest the validity of the Florida child-support order within the 20-day window. On January 15, 2019, Burrough filed a motion to set aside the court's temporary order because Burrough had not agreed to it. Around the same time, Chalmers notified the court that he had mistakenly forgotten to include the Florida order with his petition for registration and moved for permission to amend his registration to include the Florida order. The next day, Burrough filed a "Motion to Dismiss Case and Void Judgment Due to Lack of Jurisdiction and Lack of Subject Matter Jurisdiction." Burrough argued the Florida support order had never been registered because Chalmers did not comply with UIFSA's procedural requirements; since Chalmers had not attached the Florida order, the district court's confirmation and modification orders were void. She asked the court to "[d]ismiss this VOL. 58 COURT OF APPEALS OF KANSAS 535

Chalmers v. Burrough case for lack of jurisdiction because no Florida child support order(s) are registered." Burrough also alleged that Chalmers was still a resident of Florida. Chalmers filed a motion in opposition to Burrough's motion, claiming she was barred from raising the matter under K.S.A. 2019 Supp. 23-36,608 because she had not challenged the registration within 20 days of receiving notice it had been filed. The district court dismissed Chalmers' registration of the Flor- ida order as defective (because the out-of-state order had not been attached) and vacated its modification of his support obligation. In so ruling, the court rejected Chalmers' arguments that he had substantially complied with UIFSA's registration requirements and that the omission of the order was merely a clerical error. It explained:

"This argument misses the real issue before the court, whether Chalmers has substantially complied with the requirements for presenting the orders of another state's court to the Kansas Court for enforcement. The Florida Child Support Or- der, itself, certified by the court of the issuing state, is the actual subject of the registration. The presence of the certified document is fundamental to such registration. Failure to include the order is more than a mere clerical error or excus- able neglect, it is a critical element of the registration process."

Chalmers appeals.

DISCUSSION

Before the enactment of UIFSA, Kansas courts had jurisdiction "to establish, vacate, or modify" child-support orders "even when that obligation had been created in another jurisdiction." Gentzel v. Williams, 25 Kan. App. 2d 552, 556, 965 P.2d 855 (1998). The result of this expansive authority was "often multiple, inconsistent obligations existing for the same" parent, as well as "injustice in that [parents] could void their responsibility by moving to another jurisdiction and having their support obligations modified or even vacated." 25 Kan. App. 2d at 556. See, e.g., Burnworth v. Hughes, 234 Kan. 69, 76-77, 670 P.2d 917 (1983) (Kansas court could not enforce California child-support order but had jurisdiction to enter a different, albeit conflicting, order); Dip- man v. Dipman, 6 Kan. App. 2d 844, 635 P.2d 1279 (1981) (reversing dismissal of action to modify child-support obligation included in a Georgia divorce decree). 536 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

The Kansas Legislature—along with legislatures in all other states—enacted UIFSA to address these concerns. Now codified in Kansas at K.S.A. 2019 Supp. 23-36,601 et seq., UIFSA establishes a uniform, nationwide procedure for issuing, modifying, and enforcing child and spousal support. McNabb v. McNabb, 31 Kan. App. 2d 398, 407-08, 65 P.3d 1068 (2003). At its core, UIFSA was adopted to prevent the issuance of multiple support orders by different jurisdictions as families move between and interact with different states. To prevent the issuance of overlapping or conflicting orders, UIFSA establishes a "one- order" system whereby all states that have adopted UIFSA recognize and enforce the same obligation consistently. Gentzel, 25 Kan. App. 2d at 556-57. The goal of this uniform structure is to ensure that "'only one valid support order may be effective at any one time.'" In re Marriage of Amezquita & Archuleta, 101 Cal. App. 4th 1415, 1420, 124 Cal. Rptr. 2d 887 (2002). To achieve this aim, UIFSA adopts the principle "'of continuing, exclusive jurisdiction to establish and modify'" child support. Gentzel, 25 Kan. App. 2d at 556 (quoting Sampson and Kurtz, UIFSA: An Interstate Support Act for the 21st Century, 27 Fam. Law Qtrly. 85, 88 [1993]); see K.S.A. 2019 Supp. 23-36,205. The court that issued the controlling child-support order

"'is the only body entitled to modify [its child-support order] so long as it retains continuing, exclusive jurisdiction under the Act. Another state, while required by UIFSA to enforce the existing decree, has no power under that Act to modify the original decree or enter a support order at a different level.'" Gentzel, 25 Kan. App. 2d at 556 (quoting 27 Fam. Law Qtrly. at 88).

Under this framework, Kansas courts may enforce out-of- state orders concerning child support at any time, as long as they have personal jurisdiction over the parties and the out-of-state order is properly registered according to the procedures set forth in UIFSA. See K.S.A. 2019 Supp. 23-36,601 through K.S.A 2019 Supp. 23-36,603. Once those requirements are met, a Kansas court "shall recognize and enforce, but may not modify, a registered support order." (Emphasis added.) K.S.A. 2019 Supp. 23-36,603(c). Efforts to merely enforce out-of-state orders have no effect on the continuing, exclusive jurisdiction of the out-of-state tribunal to modify its existing orders. See K.S.A. 2019 Supp. 23-36,610. VOL. 58 COURT OF APPEALS OF KANSAS 537

Chalmers v. Burrough

A Kansas court does not have jurisdiction to establish or modify child-support obligations in a case originally filed in another state (like Florida) unless continuing, exclusive jurisdiction over that case is first transferred to Kansas. See K.S.A. 2019 Supp. 23- 36,204(b) (Kansas courts "may not exercise jurisdiction to establish a support order" if the petition was first filed in another state authorized to hear the case.); K.S.A. 2019 Supp. 23-36,205 (describing the circumstances when a court has "continuing, exclusive jurisdiction" to modify child-support orders). The process of transferring jurisdiction requires several steps. Highly summa- rized, the party seeking to transfer the case to Kansas must register the out-of-state order, meet residency and notification requirements, and demonstrate a need to transfer the case. Most importantly for purposes of our discussion, UIFSA only authorizes a court to exercise jurisdiction over a case and modify an out-of-state order if that order is first "registered in this state." K.S.A. 2019 Supp. 23-36,611(a). K.S.A. 2019 Supp. 23-36,609 states that a party "seeking to modify . . . a child support order issued in another state shall register that order in this state in the same manner provided in K.S.A. 2019 Supp. 23-36,601 through 23-36,608." K.S.A. 2019 Supp. 23-36,602(a) sets forth the procedure for registering an out-of-state support order in a Kansas court:

"[A] support order or income withholding order . . . may be registered in this state by sending the following records to the appropriate tribunal in this state: "(1) A letter of transmittal to the tribunal requesting registration and enforcement; "(2) two copies, including one certified copy, of the order to be registered, including any modification of the order; "(3) a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage; "(4) the name of the obligor and, if known: (A) The obligor's address and social security number; (B) the name and address of the obligor's employer and any other source of income of the obligor; and (C) a description and the location of property of the obligor in this state not exempt from execution; and "(5) except as otherwise provided in K.S.A. 2019 Supp. 23-36,312, and amendments thereto, the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted."

538 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

When these registration requirements are met, the Kansas court "shall cause the order to be filed as an order of a tribunal of another state." K.S.A. 2019 Supp. 23-36,602(b). A party may file a request to modify the out-of-state support order "at the same time as the request for registration or later." K.S.A. 2019 Supp. 23-36,602(c). The requesting party must notify other interested parties and agencies of the completed registration. Anyone wishing "to contest the validity or enforcement of the registered order" must request a hearing within 20 days. See K.S.A. 2019 Supp. 23- 36,605(b)(2); K.S.A. 2019 Supp. 23-36,606. "If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law." K.S.A. 2019 Supp. 23-36,606(b). Ultimately, if the Kansas court grants the request and modifies the parties' previous child-support obligations, "the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction." K.S.A. 2019 Supp. 23-36,611(e). Both parties in this case agree that Chalmers did not attach "two copies, including one certified copy," of the Florida order to his petition for registration. The district court found Chalmers' failure to attach these orders—and thus his failure to comply with K.S.A. 2019 Supp. 23-36,602(a)(2)—to be fatal to his registration attempt. The court explained that the Florida child-support order "is the actual subject of the registration," and thus attaching the order is a "critical element of the registration process." Because the order was not properly registered, the district court concluded it had no subject-matter jurisdiction to modify the Florida order. Chalmers challenges this ruling in two respects. He argues that Burrough's failure to raise the defective registration within 20 days of receiving the registration notice waived any challenge to the court's subsequent modification under K.S.A. 2019 Supp. 23- 36,606(b). Chalmers also claims the district court erred in finding the registration defective; he argues the petition for registration substantially complied with UIFSA—even though he did not attach the requisite copies of the Florida order—as he included the case number, jurisdiction, and date of that order in his accompanying sworn statement. And Chalmers argues the district court could have, and should have, granted his motion to amend his VOL. 58 COURT OF APPEALS OF KANSAS 539

Chalmers v. Burrough original registration instead of dismissing the case for lack of jurisdiction. Whether the district court had subject-matter jurisdiction to hear this case—including Chalmers' request for modification of the Florida order and his subsequent motion to amend his original registration—is a question of law appellate courts review de novo. Dia v. Oakley, 42 Kan. App. 2d 847, 849, 217 P.3d 1010 (2009), rev. denied 290 Kan. 1092 (2010). As the following discussion explains, we affirm the district court's dismissal for lack of subject-matter jurisdiction in light of the unique jurisdictional constraints of UIFSA.

1. Challenges to a court's subject-matter jurisdiction can be raised at any time, including after the 20-day window in K.S.A. 2019 Supp. 23-36,605 and 23-36,606.

Chalmers argues Burrough's failure to contest the registration of the Florida child-support order within the 20-day window in K.S.A. 2019 Supp. 23-36,605 and K.S.A. 2019 Supp. 23-36,606 barred her from later challenging that registration on jurisdictional grounds. Burrough asserts that challenges to a court's subject-matter jurisdiction may be raised at any time and are not subject to UIFSA's 20-day timeframe for affirmative defenses. This court exercises unlimited review over the interpretation of statutes, including the interpretation of UIFSA. Dia, 42 Kan. App. 2d at 849. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the statute. State v. Spencer Gifts, 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). If a statute is plain and unambiguous, we will not speculate about the legislative intent behind that clear language. We do not add or ignore statutory requirements, and we give ordinary words their ordinary meanings. See 304 Kan. 755, Syl. ¶ 3. "UIFSA provides only a limited opportunity to challenge an [out-of-state] order" once that order has been registered. Dia, 42 Kan. App. 2d at 852. In particular, K.S.A. 2019 Supp. 23- 36,606(b) states that if a party does not contest "the validity or enforcement of the registered support order in a timely manner"— within 20 days of receiving notice under K.S.A. 2019 Supp. 23- 36,605(b)(2)—then "the order is confirmed by operation of law." 540 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

K.S.A. 2019 Supp. 23-36,607(a) lists the defenses a party may bring when "contesting the validity or enforcement of a registered support order or seeking to vacate the registration." These include defenses that

"(1) The issuing tribunal lacked personal jurisdiction over the contesting party; "(2) the order was obtained by fraud; "(3) the order has been vacated, suspended or modified by a later order; "(4) the issuing tribunal has stayed the order pending appeal; "(5) there is a defense under the law of this state to the remedy sought; "(6) full or partial payment has been made; "(7) the statute of limitations under K.S.A. 2019 Supp. 23-36,604, and amendments thereto, precludes enforcement of some or all of the alleged arrear- ages; or "(8) the alleged controlling order is not the controlling order." K.S.A. 2019 Supp. 23-36,607(a).

A party challenging the registered order has the burden to prove one or more of these defenses applies. K.S.A. 2019 Supp. 23- 36,607(a). "If the contesting party does not establish a defense under subsection (a) to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirm- ing the order." K.S.A. 2019 Supp. 23-36,607(c). "Confirmation of a registered support order . . . precludes further contest of the order with respect to any matter that could have been asserted at the time of registration." K.S.A. 2019 Supp. 23-36,608. Kansas appellate courts have considered these provisions once before. In Dia, a child's father attempted to contest the validity of a registered, out-of-state support order as void under K.S.A. 23-9,607(a)(1) (now codified at K.S.A. 2019 Supp. 23- 36,607[a][1]), claiming the judgment was entered in Germany and the German court did not have personal jurisdiction over him. The father asserted his personal-jurisdiction defense several months after the registration was confirmed by a Kansas court—well outside the 20-day window in K.S.A. 23-9,605(b)(2) (now codified at K.S.A. 2019 Supp. 23-36,605[b][2]). This court affirmed the district court's finding that his personal-jurisdiction defense was time-barred. 42 Kan. App. 2d at 852-53. We explained:

"UIFSA provides that the issuing state has continuing and exclusive jurisdiction over that order with limited exceptions. UIFSA specifically allows a challenge VOL. 58 COURT OF APPEALS OF KANSAS 541

Chalmers v. Burrough to the validity of the order in the responding state, but only before confirmation of the order's initial registration. After confirmation, the defenses listed in UIFSA—specifically including lack of jurisdiction—may no longer be raised in the responding state." 42 Kan. App. 2d at 853.

Chalmers argues the same result should follow here, as the issue of the defective registration arose more than 20 days after Burrough received notice of its filing. But this case is distinguishable from Dia in at least two important respects. First, Burrough did not challenge "the validity or enforcement" of the Florida order. Instead, she asserted that Chalmers had not properly registered the order, and the failure to do so deprived the court of subject-matter jurisdiction over Chalmers' subsequent claims. That is, Burrough was not contesting the authenticity or enforceability of the Florida case, but the procedural soundness of Chalmers' efforts to register that case in Kansas. UIFSA's limitations on affirmative defenses only apply when someone is "contesting the validity or enforcement of a registered support order." See K.S.A. 2019 Supp. 23-36,607(a); see also K.S.A. 2019 Supp. 23-36,605(b)(2); K.S.A. 2019 Supp. 23-36,606(b) (concerning time constraints for "contest[ing] the validity or enforcement of the registered" order). Accord Dia, 42 Kan. App. 2d at 853 (recognizing "the defenses listed in UIFSA . . . may no longer be raised" after the 20-day window elapses). Those limitations do not apply here. Second, questions of subject-matter jurisdiction—like that voiced by Burrough here—may be raised at any time, including by the court sua sponte. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204, P.3d 562 (2009). Unlike personal jurisdiction, which concerns the court's authority over the parties and may therefore be waived, subject-matter jurisdiction goes to the power of a court to hear and decide a case. Gentzel, 25 Kan. App. 2d at 559-60. Parties cannot bestow the power to hear a case on a court when that authority does not otherwise exist, so subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. Kingsley, 288 Kan. at 395. Under UIFSA's procedural requirements, a Kansas court has no authority to modify child-support obligations in an out-of-state case until the out-of-state order is properly registered under K.S.A. 2019 Supp. 23-36,602. See K.S.A. 2019 Supp. 23-36,609 542 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

(a party "seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in this state in the same manner provided in K.S.A. 2019 Supp. 23-36,601 through 23-36,608" [emphasis added]); K.S.A. 2019 Supp. 23- 36,611(a) ("upon petition a tribunal of this state may modify a child support order issued in another state which is registered in this state" [emphasis added]). Until then, the original, issuing court has continuing, exclusive jurisdiction over the case. K.S.A. 2019 Supp. 23-36,205(b)(2). As this court observed more than two decades ago in Gentzel, UIFSA thus modified Kansas courts' general jurisdiction to consider out-of-state child-support orders—the jurisdiction discussed by the dissent—and replaced it with a uniform statutory framework vesting subject-matter jurisdiction in only one court at a time. 25 Kan. App. 2d at 557-58. And proper registration of an out-of-state child-support order is a prerequisite under UIFSA that must be satisfied before a Kansas court can take any action on that order. In short, without a properly registered out-of-state order, a Kansas court has no authority, i.e., no jurisdiction, to hear the case. In light of this discussion, the district court did not err when it found it could only hear the case if Chalmers' petition complied with K.S.A. 2019 Supp. 23-36,602(a)'s registration requirements—that is, if the support order was properly registered under UIFSA. Our analysis thus turns to that question.

2. Chalmers' petition did not substantially comply with K.S.A. 2019 Supp. 23-36,602.

As the previous discussion indicates, in order to enforce or modify an out-of-state child-support order in Kansas, a person must register that order using the procedure in K.S.A. 2019 Supp. 23-36,602. That means, among other things, a person seeking to register an order must attach two copies of that order to the petition for registration, including at least one certified copy. K.S.A. 2019 Supp. 23-36,602(a)(2). Chalmers did not attach any copies of the Florida order. But he argues that his petition for registration included enough general information about that order to substantially comply with the spirit, if not the letter, of UIFSA's registration requirements. VOL. 58 COURT OF APPEALS OF KANSAS 543

Chalmers v. Burrough

As a preliminary matter, we—like other courts across the country—recognize that requiring strict compliance with UIFSA's registration procedures could lead to unnecessarily harsh results. See Ex Parte Reynolds, 209 So. 3d 1122, 1126-28 (Ala. Civ. App. 2016) (strict compliance with registration procedures of UIFSA is not required to confer subject-matter jurisdiction to enforce or modify a foreign child-support judgment); Nelson v. Halley, 827 So. 2d 42, 46 (Miss. App. 2002) (although some statutorily required information for registration of a foreign judgment under the UIFSA was missing, the foreign judgment had adequately been filed); Twaddell v. Anderson, 523 S.E.2d 710, 714 (N.C. App. 1999) ("[U]nder UIFSA . . . substantial compliance with the requirements of [North Carolina's analog of K.S.A. 2019 Supp. 23- 36,602] will suffice to accomplish registration of the foreign order."); Kendall v. Kendall, 340 S.W.3d 483, 499-501 (Tex. App. 2011) (permitting "substantial compliance" with the procedural registration requirements set forth in the UIFSA); In re Marriage of Owen & Phillips, 126 Wash. App. 487, 496-97, 108 P.3d 824 (2005) ("[S]ubstantial compliance with [UIFSA's] procedural registration requirements satisfies the statute governing filing an out- of-state support order, so long as the obligor is not prejudiced by the manner in which it is filed."). As the Court of Appeals of Washington observed, UIFSA's "procedural safeguards are designed to minimize the risk of prejudice to the obligor [and do] not support a policy that punishes support recipients for minor, harmless procedural errors in registration." 126 Wash. App. at 497-98. At the same time, UIFSA's registration procedure was enacted for a reason, and we must interpret and apply that Act as written. See Spencer Gifts, 304 Kan. 755, Syl. ¶ 3. Thus, though strict compliance is not necessary, a party still must substantially comply with UIFSA's registration requirements before a Kansas court can take any action concerning an out-of-state child-support order. Chalmers argues his case is analogous to Reynolds, where an Alabama appeals court found a mother had substantially complied with UIFSA. In Reynolds, the mother electronically filed the copies of the out-of-state judgment, but the certification was on the back of the document and did not appear in the electronic filing system. The court found she had substantially complied with the 544 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

Act's registration requirements and allowed her to cure the technical deficiencies in the filing. Ex Parte Reynolds, 209 So. 3d at 1128. Chalmers contends the situation in Reynolds is similar to his own, but he glosses over a key distinction: The registering party in Reynolds actually filed a copy of the out-of-state order. Chalmers did not. Other cases from across the country that have considered defects in the registration process similarly provide little support for Chalmers' position. In Owen, the mother filed her registration petition—which included all necessary documents—with the court when she was supposed to file them with the Department of Social and Health Services. Her registration was forwarded to the correct location by the court, fixing the mistake. The Washington Court of Appeals concluded she had substantially complied with UIFSA. In re Marriage of Owen & Phillips, 126 Wash. App. at 495-98. In Nelson, the mother again included all required documents when she sought to register an out-of-state child-support order, but she did not include the father's social security number and certain employment information. The Nelson court found that the out-of-state order itself had been appropriately filed and the missing data could be corrected. 827 So. 2d at 45-46. Chalmers did not merely file his petition in the wrong office or fail to include minor details; he wholly failed to attach the order he sought to register. The district court concluded the attachment of the Florida order to be registered was a critical component of UIFSA's registration requirements. We agree. UIFSA states that an out-of-state order "is registered when the order is filed in the registering tribunal of this state." (Emphasis added.) K.S.A. 2019 Supp. 23-36,603(a). As the district court observed, the controlling out-of-state order is the focus of the modification or enforcement proceeding. Without a copy of that order, the district court cannot know its contours. Information like the case number, issuing court, and filing date— which Chalmers identified in his petition for registration—are important for identification purposes, but they are not a substitute for the order itself. Under these circumstances, we cannot say that Chalmers substantially complied with UIFSA's registration requirements. VOL. 58 COURT OF APPEALS OF KANSAS 545

Chalmers v. Burrough

Chalmers' argument that Burrough was not prejudiced by the defect in his registration is similarly without merit since a Kansas court has no jurisdiction under UIFSA until an out-of-state order is properly registered. Only then does a Kansas court have the authority to take action in the case. See Auclair v. Bolderson, 6 A.D.3d 892, 895, 775 N.Y.S.2d 121 (N.Y. App. Div. 2004) (noting the "failure to prove registration prevents New York courts from obtaining subject matter jurisdiction under both UIFSA and [the Federal Full Faith and Credit for Child Support Orders Act]"). Allegations as to prejudice are not part of this analysis. In his final argument on appeal, Chalmers asserts that dismissal was not required, as the district court could have permitted him to amend his petition to attach the Florida order. It is true that appellate courts have often indicated permission to amend a pleading should be freely granted if the amendment is timely filed and notice given to all parties. See James v. City of Wichita, 202 Kan. 222, Syl. ¶ 4, 447 P.2d 817 (1968). But that rule presupposes a court has the authority to hear the case in the first place. Here, the fundamental defect in Chalmers' registration prevented the district court from acquiring jurisdiction over the case at all. Thus, the proper course was to dismiss the case and allow Chalmers to properly register the Florida order in Kansas in compliance with UIFSA. Without proper registration of the Florida order in Kansas, the district court had no subject-matter jurisdiction to take any action in the case. Thus, the court correctly dismissed Chalmers' registration petition and accompanying request for modification.

Affirmed.

* * *

ATCHESON, J., dissenting: The Uniform Interstate Family Support Act (UIFSA) was adopted across the country about 25 years ago to streamline the enforcement of out-of-state child support orders and to avoid conflicting orders from more than one state. The majority today impedes those laudable objectives by en- dorsing the Sedgwick County District Court's mistaken idea that the UIFSA modifies conventional concepts of subject matter ju- 546 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough risdiction to render enforcement orders void for procedural irreg- ularities that ordinarily would be treated as waivable defects. The language of the UIFSA neither contains nor implies such an ex- pansion of subject matter jurisdiction and simply imposes procedural conditions precedent to a court's exercise of its authority to enforce an out-of-state support order in a particular case—a limitation jurisprudentially different from and narrower than subject matter jurisdiction. I, therefore, respectfully dissent. As I explain, my reading of the UIFSA would be of little practical benefit to Almario Chalmers in this distinctly atypical case in which he has sought to reduce his child support obligations established in an order originating with the Florida courts. Chalmers filed in Sedgwick County to modify the support order because his daughter and Brittany Burrough, the child's mother, lived in Wich- ita and he no longer lived in Florida. In the vast majority of cases, however, a parent with a court order for child support looks to enforce that obligation against the other parent who has defaulted. For them, the difference between a limitation on a court's case specific authority to issue orders enforcing an out-of-state child support order and a deprivation of subject matter jurisdiction would be substantial. A court order issued without authority in a given case typically is voidable, meaning the party ordered to act may be deemed to have ratified the order if he or she complies without objection and may be estopped to undo that compliance. So absent a timely objection, a delinquent parent could not recoup child support payments made to comply with a procedurally deficient enforcement order. Con- versely, an order from a court without subject matter jurisdiction is void and cannot be enforced. The defect can be raised at any time, and the parties should be returned to the position they occu- pied before the order was entered. In a UIFSA action, a delinquent parent would be entitled to the return of any payments made in satisfaction of the void enforcement order. Nothing in the language of the UIFSA requires the unconven- tional (and specious) application of subject matter jurisdiction the majority endorses. And the policies animating the UIFSA weigh VOL. 58 COURT OF APPEALS OF KANSAS 547

Chalmers v. Burrough strongly against the notion the drafters planted that kind of jurisdictional time bomb in the procedural mechanisms for enforcement or modification of an out-of-state support order.

Differentiating Subject Matter Jurisdiction and Case Specific Ju- dicial Authority

Subject matter jurisdiction refers to the judicial right of a court to hear a particular kind of case or legal dispute. Carlsbad Tech- nology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639, 129 S. Ct. 1862, 173 L. Ed. 2d 843 (2009) ("'Subject matter jurisdiction defines the court's authority to hear a given type of case.'") (quoting United States v. Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 81 L. Ed. 2d 680 [1984]); Kingsley v. Kanas Dept. of Revenue, 288 Kan. 390, Syl. ¶ 1, 204 P.3d 562 (2009); In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161 (2010). That right may be conferred by statute or constitutional mandate. In Kansas, district courts have general original jurisdiction, meaning they may hear cases or legal disputes unless they have been specifically deprived of subject matter jurisdiction. See K.S.A. 20-301 (district court in each county "shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law"); In re Marriage of Williams, 307 Kan. 960, 967-68, 417 P.3d 1033 (2018); In re Estate of Heiman, 44 Kan. App. 2d at 766-67. The district courts have subject matter jurisdiction over issues related to child support. See K.S.A. 2019 Supp. 23-2204(b)(2) (recognizing legal duty of father and mother to support child; duty enforce- able through legal action including support orders); K.S.A. 2019 Supp. 23-2210(a) (district court has jurisdiction over action to determine parentage of child that may be joined with action for support); K.S.A. 2019 Supp. 23-3001(a) (in divorce action, district court "shall make provisions for the support and education of the minor children"). The parties cannot by agreement or acquiescence endow a court with subject matter jurisdiction. Kingsley, 288 Kan. 390, Syl. ¶ 1; In re Estate of Heiman, 44 Kan. App. 2d at 766. And a court is obligated to question its subject matter jurisdiction even if the parties have not. 44 Kan. App. 2d at 766. Because a court without subject matter jurisdiction lacks the right to adjudicate the type of dispute before it, any orders or judgments it issues are of 548 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough no legal force. They are, in a word, void. In re Marriage of Wil- liams, 307 Kan. at 963; In re Estate of Heiman, 44 Kan. App. 2d at 766. The losing party can attack the orders or judgments at any time, even after complying with them for years. Although courts have subject matter jurisdiction over a type of case, they may lack the authority to adjudicate fully a particular case of that type for any number of reasons. In a typical civil case, for example, a district court lacks the authority to enter a judgment against a defaulting defendant who has entered an appearance unless the plaintiff serves a notice of intent to seek default. See K.S.A. 2019 Supp. 60-255(a). If a defendant then timely challenges the lack of notice, the judgment should be set aside in favor of further proceedings, a remedy consistent with the court having subject matter jurisdiction. See Hood v. Hayes, 7 Kan. App. 2d 591, 597-98, 644 P.2d 1371 (1982). Or an out-of-state defendant may have insufficient contacts with the forum state to be sued there for a particular wrong consistent with due process considerations—a lack of personal jurisdiction, not subject matter jurisdiction. See Walden v. Fiore, 571 U.S. 277, 291, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014). Unlike a lack of subject matter jurisdiction, a lack of personal jurisdiction may be waived or forfeited. See In- surance Corp. of Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S. 694, 702-04, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982); In re Marriage of Williams, 307 Kan. at 966. The United States Supreme Court has periodically cautioned against an all too common mistake in failing to distinguish subject matter jurisdiction over a type or class of cases, on the one hand, and judicial authority to adjudicate a specific legal dispute between specific parties, on the other. Union Pacific R. Co. v. Broth- erhood of Locomotive Engineers, 558 U.S. 67, 81-82, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009); Insurance Corp. of Ireland, 456 U.S. at 701. In Union Pacific, the Court drew a pointed distinction between subject matter jurisdiction and a "claim-processing rule" the violation of which could derail an action if a defendant raised it but would be forfeited if not. 558 U.S. at 81-82 (citing timely filing of administrative charge of discrimination with Equal Em- ployment Opportunity Commission as claim-processing rule for private civil actions alleging violation of Title VII). Other courts VOL. 58 COURT OF APPEALS OF KANSAS 549

Chalmers v. Burrough have taken note of the difference. See, e.g., Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1052 (Fed. Cir. 2012); Matter of M.A., 895 N.W.2d 477, 480 (Iowa App. 2017); In re Schneider, 173 Wash. 2d 353, 360, 268 P.3d 215 (2011). As I have just indicated, if a court deviates from a claim-processing rule, the result is a voidable order or judgment that the disadvantaged party must challenge in a timely manner or any potential relief based on the defect will be forfeited. The Iowa Court of Appeals recently outlined the rule by first explaining a court may have subject matter jurisdiction but may lack the authority to hear a particular case. In that circumstance, a court's judgment is voidable rather than void, so "'where subject matter jurisdiction exists, an impediment to a court's authority can be obviated by consent, waiver or estoppel.'" Matter of M.A., 895 N.W.2d at 480 (quoting State v. Mandicino, 509 N.W.2d 481, 483 [Iowa 1993]). The principle is well settled. See Union Pacific R. Co., 558 U.S. at 81-82; State ex rel. Gains v. Go Go Girls Cabaret, Inc., 187 Ohio App. 3d 356, 362, 932 N.E.2d 353 (2010) ("[L]ack of subject-matter jurisdiction is the type of jurisdiction that can void a judgment; however, a lack of authority to rule when the court has subject-matter jurisdiction results in a voidable rather than a void judgment."); 56 Am. Jur. 2d, Motions, Rules, and Orders § 47 ("[A]n order entered by a district court having jurisdiction but without authority is voidable but is not void."); 60 C.J.S., Motions and Order § 76 ("An order issued by a court with subject matter jurisdiction, even if arguably erroneous and thus voidable, is still a court order.").

Structure and Purpose of the UIFSA

The question here becomes how those principles of subject matter jurisdiction and judicial authority to act in a specific case apply to Chalmers' inarguable failure to file a legally sufficient registration of the Florida child support order with the Sedgwick County District Court. The answer requires an examination of the language and purpose of the UIFSA. The National Conference of Commissioners on Uniform State Laws finalized the model UIFSA in 1992 with the aim of facili- tating the interstate enforcement of child support orders and cur- 550 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough tailing efforts of parents required to pay support to evade their obligations by moving to and obtaining conflicting orders in other states, among other ploys. Early on, Congress "encouraged" states to adopt the UIFSA by conditioning the receipt of federal funding for child support enforcement services on its enactment. See UIFSA, Prefatory Note at 1 (rev. 2008). The fiscal carrot worked, and all 50 states have enacted the UIFSA. The model act has been revised periodically, most recently in 2008. Kansas has adopted the latest version of the UIFSA. Pertinent here, the UIFSA generally permits a court in one state to enforce a support order issued in another state and, in more limited circumstances, to modify such an order. See K.S.A. 2019 Supp. 23-36,603 (enforcement of order upon registration); K.S.A. 2019 Supp. 23-36,611 (modification of registered order from another state). In the vast majority of cases, parents entitled to receive child support seek to enforce out-of-state orders against obligated parents who aren't paying. And they typically do so through state agencies charged with assisting in securing support payments rather than through privately retained lawyers. See UIFSA, § 606, comment at 82 (rev. 2008); § 611, comment at 89. So this case is unusual in that the obligated parent has sought to register and then modify the out-of-state support order, and both parties have hired lawyers. The statutory requirements for registering an out-of-state order preparatory to seeking either court enforcement or modification are set out in K.S.A. 2019 Supp. 23-36,602. The registration request is supposed to include two copies of the order to be enforced, one of which must be certified. K.S.A. 2019 Supp. 23- 36,602(a)(2). I agree with the majority and the authority it cites that the UIFSA calls for substantial compliance with the registration requirements and not technical exactitude. I also agree that submitting a registration request with no copies of the support order falls short of even that relaxed obligation. The conclusion seems ineluctable—a court shouldn't be expected to enforce or modify an order from another jurisdiction without being formally furnished a copy of that order. I, too, find Chalmers' argument that Burrough waited too long to challenge the deficient registration unavailing. Chalmers relies VOL. 58 COURT OF APPEALS OF KANSAS 551

Chalmers v. Burrough on the 20-day time limit in K.S.A. 2019 Supp. 23-36,605(b)(2). But the time appears to cover only those statutory challenges to the out-of-state support order itself outlined in K.S.A. 2019 Supp. 23-36,607(a). Those grounds would undermine the support order's "validity or enforcement" and, in turn, would require "vacat[ing] the registration." The time limit does not govern the assertion of substantial defects independently rendering the registration inef- fective. In turn, a district court need not vacate a registration that never became effective; K.S.A. 2019 Supp. 23-36,607(a) does not apply to that circumstance. Burrough, therefore, did not lose her right to attack the sufficiency of Chalmers' attempted registration to the time bar in K.S.A. 2019 Supp. 23-36,605(b)(2). When an out-of-state child support order has been successfully registered in Kansas, the district court may then issue orders to enforce it. K.S.A. 2019 Supp. 23-36,603. But Chalmers wanted the district court to reduce his support obligation in light of what he represented to be a substantial drop in his income. Registration alone is not enough to permit a court to modify an out-of-state support order. The party seeking modification of the order also must show: (1) the payor of the support, the recipient of the payments, and the child for whose benefit the support is due no longer reside in the state that issued the order; (2) he or she is not a resident of the state in which modification is sought; and (3) the district court can exercise personal jurisdiction over the party who is not seeking modification. K.S.A. 2019 Supp. 23-36,611(a)(1). For purposes of this appeal, nobody disputes those requirements for modification were satisfied. Alternatively, a Kansas district court can modify a properly registered support order from another state if: (1) the child is a resident of Kansas; (2) the district court may exercise personal jurisdiction over one of the parties to the order; and (3) all of the parties to the order have filed consents with the court that issued the order requesting modification and continuing jurisdiction over the order in this state. K.S.A. 2019 Supp. 23-36,611(a)(2). Chalmers did not undertake his alternative procedure for modification. That procedure also requires legally sufficient registration of the support order. Under the UIFSA, the court issuing a child custody support 552 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough order retains "continuing, exclusive jurisdiction" to modify the order until another court renders a procedurally proper modification of that order. K.S.A. 2019 Supp. 23-36,205(a) (Kansas district court issuing child support order "shall exercise continuing, exclusive jurisdiction to modify its child support order"); K.S.A. 2019 Supp. 23-36,205(c) ("If a tribunal of another state has issued a child support order [that] modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state."). The court making the modification then assumes continuing, exclusive jurisdiction over the modified order and the parties to it. K.S.A. 2019 Supp. 23-36,611(e) (Kansas district court assumes "continuing, exclusive jurisdiction" when it modifies a support order issued by an out-of-state court). The modified support order supersedes the original order. The model UIFSA does not confer subject matter jurisdiction on courts to handle child support issues generally or to enter support orders specifically. Nor does it purport to do so. The Act defines a covered order as "a support order for a child . . . under the law of the issuing state." UIFSA, § 102(2) (rev. 2008). So courts derive their subject matter jurisdiction over child support from legal sources external to the UIFSA. Kansas is no exception. See K.S.A. 2019 Supp. 23-36,102(b) (definition of "[c]hild support order"). The UIFSA does provide both an orderly mechanism for a court in one state to enforce and (sometimes) modify a particular support order issued by a court in another state and a check on a party to a support order trying to obtain a more favorable order in a second state. Those worthy goals are advanced through "claim- processing" rules and not manipulation of subject matter jurisdiction. First, to enforce or modify an out-of-state support order, the party seeking court intervention must successfully register the order. Registration triggers the court's authority to enforce the order and is a condition precedent for a request to modify the order. As such, registration is simply a procedural gateway for a court to exercise authority over the specific order and the parties bound by that order. The drafters of the UIFSA intended nothing more. They describe registration as "a process, and the failure to register does VOL. 58 COURT OF APPEALS OF KANSAS 553

Chalmers v. Burrough not deprive an otherwise appropriate forum of subject matter jurisdiction." See UIFSA, § 601, comment at 73 (rev. 2008). The North Carolina Court of Appeals recently recognized that registration under the UIFSA "is a procedural requirement, not a jurisdictional one." Hart v. Hart, 836 S.E.2d 244, 248 (N.C. App. 2019) (citing N.C. Gen. Stat. § 52C-6-601 and comment to uniform act). Similarly, the procedures permitting a court to modify an out- of-state support order after it has been registered reflect claims- processing rules and not a grant of subject matter jurisdiction. Those procedures bear none of the hallmarks of subject matter jurisdiction. First, of course, they pertain to a specific support order and the parties to it, rather than a class or kind of legal dispute. Second, they do no more than expand a court's authority from simply enforcing a given order to modifying it. That would be a bizarrely bifurcated and truncated subject matter jurisdiction, breaking with all conventional notions of the concept. Finally, under the UIFSA, the parties can give mutual consent to a court to modify an out-of-state support order, if the child resides in the modifying state or that court can exercise personal jurisdiction over a party to the order. See K.S.A. 2019 Supp. 23-36,611(a)(2). But subject matter jurisdiction is a form of judicial power that cannot be conferred through the parties' consent. The Washington Su- preme Court has recognized that UIFSA grants courts the authority to modify a support order but expressly rejected the argument modification of a given order entailed the exercise of subject matter jurisdiction. In re Schneider, 173 Wash. 2d at 361-62. In construing a different statutory scheme dealing with the treatment of military pensions in divorce actions, the Kansas Su- preme Court relied on the absence of any reference to subject matter jurisdiction in the statutory language coupled with the enumer- ation of "concepts related to a court's authority over a person" to find the scheme did not affect subject matter jurisdiction. In re Marriage of Williams, 307 Kan. at 974. The same force of reasoning can be applied to the UIFSA and leads to the same conclusion. The statutory scheme addresses the enforcement and modification of a given child support order and the rights and obligations of the individual parties to that order rather than creating a broad judicial power over child support as an area of law or a subject matter. So 554 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough the "concepts" of the UIFSA focus on the handling of individual support orders. The systemic force of the UIFSA comes from its universal adoption across all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands—not from some regulation of the subject matter jurisdiction of those courts. In sum, the UIFSA does not bestow subject matter jurisdiction either through registration of an out-of-state order for enforcement or the additional requirements for modification of that order. It grants authority to a court to act in those respects as to a particular order and the parties to that order. In turn, if a party fails to properly register a support order or to establish the requirements for modification, a court acting to enforce or modify the order does so without case-specific authority. Any resulting order of enforcement or modification is voidable. The adversely affected party must timely contest enforcement or modification in the trial court or on appeal—otherwise any challenge is lost.

Majority and District Court Misconstrue UIFSA

Deviating from the governing jurisdictional principles and the language of the UIFSA, the district court and the majority have erred in concluding Chalmers' legally inadequate registration de- prives them of subject matter jurisdiction. They consequently have erred in determining the district court's orders were void and the case should be dismissed for lack of subject matter jurisdiction. As I have indicated, the correct analysis shows the district court exceeded its authority in this case in issuing the orders modifying Chalmers' support. The orders were voidable, not void. Bur- rough did properly challenge them, and the district court, therefore, could set them aside, i.e., vacate or void them, upon her request. But Chalmers' action should not have been dismissed, since the district court had subject matter jurisdiction. He should have been allowed to file an amended registration substantially complying with K.S.A. 2019 Supp. 23-36,602. That would not have resuscitated the voidable orders Burrough disputed. But it would have allowed Chalmers to again seek modification of the Florida support order. Looking at this case from here, I see only a nominal advantage to Chalmers in the outcome. Instead of having to start VOL. 58 COURT OF APPEALS OF KANSAS 555

Chalmers v. Burrough from square one, he would start from something like square one and three-quarters. My real concern with the majority's confusion of subject matter jurisdiction and what are rules for processing claims under the UIFSA lies not in the comparatively limited disadvantage to Chalmers but in the impact on the run of cases seeking recovery of delinquent support payments. In some of those cases, the difference between voidable orders and void orders could be quite significant. For example, assume a recipient of child support payments (typically the child's mother) attempted to register a Missouri circuit court's support order for enforcement in the Sedgwick County District Court four years ago because the payor (typically the child's father) had moved to and now works in Wichita. But, like here, the registration did not include copies of the Missouri support order. In the absence of any legal objection from the payor, the recipient has obtained and executed income withholding orders, garnishments, or some combination during that time, cover- ing current payments and eating into a substantial arrearage. The recovery likely would be measured in the thousands of dollars, if not tens of thousands. The payor then hears about this opinion when it is published and files a motion to have the district court's collection efforts declared void for lack of subject matter jurisdiction, since the Mis- souri support order wasn't satisfactorily registered. He would be right under the rule the majority fashions, and unscrambling the mess would impose a hardship on someone, likely the recipient of the support payments and, thus, the child, since the seemingly successful collection efforts would have to be undone. Cf. Crist v. Hunan Palace, Inc., 277 Kan. 706, 718, 89 P.3d 573 (2004) (garnishment invalid if underlying judgment void for lack of subject matter jurisdiction); People v. Kim, 212 Cal. App. 4th, 117, 125, 151 Cal. Rptr. 3d 154 (2012) (A void judgment "'is, in legal effect, no judgment'" and "'[b]eing worthless in itself, all proceedings founded upon it are equally worthless.'"). The delinquent payor would reap an inequitable benefit. But if the inadequate registration simply resulted in voidable collection orders, the payor's late attack presumably would be barred by forfeiture, acquiescence, or estoppel. See Matter of M.A., 895 N.W.2d at 480; 46 Am. Jur. 2d, 556 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough

Judgments § 27 ("A court's failure to follow proper procedure results in an act in excess of its jurisdiction such that the judgment remains valid but voidable, and the parties may be precluded from setting it aside by waiver or estoppel."). That result better serves the purposes of the UIFSA and fairly balances the rights of the parties to a support order. Ultimately, the majority never lays out a developed explanation for finding the UIFSA confers subject matter jurisdiction when neither its express language nor its operation actually supports that sort of expansive conclusion. The majority refers to "the unique jurisdictional constraints of UIFSA," but that's no more than a phantom refuge that could be applied by rote to a lot of model statutory schemes. Slip op. at 11. Uniqueness is not itself a basis for or an indicator of subject matter jurisdiction. Inferentially at least, the majority seems to equate the UIFSA's reference to a court's "continuing, exclusive jurisdiction" over a particular child support order and the parties to it with subject matter jurisdiction over child support issues generally. But the fit is distinctly untidy, since it works only by ignoring the basic tenets of subject matter jurisdiction. Moreover, it would fail here, since registration of a support order does not affect a court's continuing and exclusive jurisdiction over the substance of the order. Registration merely permits a court in another state to enforce the order as written against a party over whom that court may exercise personal jurisdiction. The strange sort of evanescent subject matter jurisdiction the majority ascribes to the UIFSA is unnecessary to the Act's fundamental objectives. The UIFSA's procedural requirements for registration and the additional mandated proof for modification that the parties and child no longer have a connection to the state issuing a support order satisfactorily protect against forum shopping and conflicting orders, especially as a delinquent parent's device to evade support obligations. There is no reason to imbue those protections with the exceptional power of subject matter jurisdiction they would not otherwise command. Rendering enforcement actions void for lack of subject matter jurisdiction based on an insufficient registration of the underlying support order would actually impair the objectives of the UIFSA. Cf. J.S.A. v. M.H., 224 VOL. 58 COURT OF APPEALS OF KANSAS 557

Chalmers v. Burrough

Ill. 2d 182, 211, 863 N.E.2d 236 (2007) (Courts should declare orders void, especially in collateral proceedings, "'only when no other alternative is possible,'" since "'disastrous consequences'" often attend doing so.). We should not open that door in this case. The majority cites, more or less in passing, two cases from other states labeling the procedural requirements in the UIFSA as conditions conferring subject matter jurisdiction. Neither case offers persuasive support for the proposition. In Auclair v. Bolder- son, 6 A.D.3d 892, 895, 775 N.Y.S.2d 121 (N.Y. App. Div. 2004), the court treated the failure to register an out-of-state child support order as a defect defeating subject matter jurisdiction of the New York courts. But the Auclair decision falls into the rabbit hole the Supreme Court described and warned against in Union Pacific: Without identifying or discussing the contours of subject matter jurisdiction, the decision simply assumes (incorrectly) the claim processing rules of the UIFSA and the parallel Federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B (2016), for handling a specific support order dictate subject matter jurisdiction. The Alabama Court of Appeals decision in Ex parte Reynolds, 209 So. 3d 1122, 1126-28 (Ala. Civ. App. 2016), is even less illuminating. The Reynolds court held that substantial compliance with the UIFSA's registration requirement was sufficient for a party to then seek enforcement of an out-of-state support order. The opinion referred to registration as conferring subject matter jurisdiction—an observation that was both entirely su- perfluous to the facial sufficiency of the registration documents and offered without analysis. The majority also cites Gentzel v. Williams, 25 Kan. App. 2d 552, 557-58, 965 P.2d 855 (1998), but that case mistakenly labels the UIFSA's limitation on where a party may seek modification of a support order as an issue of subject matter jurisdiction when it actually deals with venue. As I have already indicated, the UIFSA prohibits a party from seeking modification of an out-of-state support order in the state in which he or she then resides. See K.S.A. 2019 Supp. 23-36,611(a)(1)(B) (petitioner seeking modification in Kansas courts must be "a nonresident of this state"). That requirement for modification is not at issue here, but it was in Gentzel. The drafters of the UIFSA deliberately precluded a party from seeking modification of a support order in his or her home 558 COURT OF APPEALS OF KANSAS VOL. 58

Chalmers v.Burrough state because requiring the other party to resist in a distant forum would have been unfair in the run of cases. See UIFSA, § 611, comment at 88-89 (rev. 2008). They explained the rationale for their rule this way: "The play-away rule achieves rough justice between the parties in the majority of cases by preventing ambush in a local tribunal." § 611, comment at 89. In Gentzel, Williams, who had moved to Kansas, filed in Reno County District Court seeking a reduction in his child support under an order that had been issued in Arizona. By then, Gentzel and the children had moved to Texas. The district court granted the reduction, and Gentzel appealed. This court correctly recognized Williams did not satisfy the requirements in K.S.A. 23-9,611(a), now recodified at K.S.A. 2019 Supp. 23-36,611(a), to seek modification because he lived in Kansas and filed here rather than in Texas. 25 Kan. App. 2d at 558. Without any detailed explanation, this court labeled the procedural defect as one affecting subject matter jurisdiction. Gentzel, 25 Kan. App. 2d at 560. But that is incorrect. The district court had subject matter jurisdiction to hear and decide child support issues and, indeed, could have properly entertained a request from Gentzel to modify the Arizona order. Subject-matter jurisdiction doesn't come and go depending on who brings an action. The UIFSA merely restricted where Wil- liams could seek modification of the order. Limitations on where a particular action may be brought, like those in K.S.A. 2019 Supp. 23-36,611(a), address venue and not subject matter jurisdiction. Moreover, the parties in Gentzel could have consented to proceed in the Reno County District Court—an option wholly inconsistent with a lack of subject matter jurisdiction. See K.S.A. 2019 Supp. 23-36,611(a)(2). In that respect, proper venue may be a mandatory condition for modification of a support order under the UIFSA that the nonmoving party can give up only by consent. In short, Gentzel offers nothing of substance advancing the majority's take on subject matter jurisdiction. There is, to be sure, a division of authority on whether compliance with the requirements for registration or modification of an out-of-state support order are conditions precedent for subject VOL. 58 COURT OF APPEALS OF KANSAS 559

Chalmers v. Burrough matter jurisdiction or simply for judicial authority over the particular order and the parties to it. See Pappas v. O'Brien, 193 Vt. 340, 351 n.5, 67 A.3d 916 (2013) (recognizing split of authority, citing cases, and declining to address the issue). Cases coming down on the side of subject matter jurisdiction join Auclair in the rabbit hole with their summary conclusions and lack of analysis. See, e.g., McCarthy v. McCarthy, 785 So. 2d 1138, 1140 (Ala. Civ. App. 2000); Stone v. Davis, 148 Cal. App. 4th 596, 602, 55 Cal. Rptr. 3d 833 (2007); State ex rel. Freeman v. Sadlier, 586 N.W.2d 171, 173-74 (S.D. 1998). Cases rejecting subject matter bars, typ- ified by In re Schneider, 173 Wash. 2d at 360-62, do so after assessing the legal principles governing jurisdiction. See, e.g., In re Marriage of Haugh, 225 Cal. App. 4th 963, 977, 170 Cal. Rptr. 3d 683 (2014); Hart, 836 S.E.2d at 248; Kendall v. Kendall, 340 S.W.3d 483, 498-501 (Tex. App. 2011). I haven't attempted to sur- vey the competing cases or to count noses as to how many there are on each side. As my analysis suggests, we should align with those courts rejecting the idea that the failure to comply with the registration requirements of the UIFSA strips a court of subject matter jurisdiction. I, therefore, respectfully dissent from the majority's decision to affirm the district court in dismissing Chalmers' action for want of subject matter jurisdiction because he failed to substantially comply with K.S.A. 2019 Supp. 23-36,602(a). Notwithstanding that failure, the district court still had subject matter jurisdiction. 560 COURT OF APPEALS OF KANSAS VOL. 58

City of Shawnee v. Adem

___

No. 121,328

CITY OF SHAWNEE, Appellee, v. ASNAKE ADEM, Appellant.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Question of Law—Appellate Review. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited.

2. APPEAL AND ERROR—Statutory Right to Appeal in Kansas. The right to appeal in Kansas is entirely statutory and is not contained in the United States or Kansas Constitutions. Normally, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by law.

3. CRIMINAL LAW—Direct Appeal from KORA Registration Requirements. K.S.A. 2019 Supp. 22-3602(a) allows appellate courts to hear a defendant's direct appeal from their Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et. seq., registration requirements.

4. KANSAS OFFENDER REGISTRATION ACT—Application to Municipal Court Convictions—Appellate Review. Whether KORA applies to municipal court convictions involves statutory interpretation, which is a question of law subject to unlimited review.

5. SAME—KORA Is Civil and Nonpunitve—Application. KORA is a regulatory scheme that is civil and nonpunitive for all classes of offenders.

6. SAME—KORA Not Subset of KCCP. There is no incorporating language in either the Kansas Code of Criminal Procedure (KCCP) or the KORA which indicates legislative intent to treat KORA as a subset of the KCCP.

7. SAME—KORA Independent Section of Kansas Law. Despite its location in Chapter 22 of Kansas Statutes Annotated, the KCCP, KORA is an independent and self-contained section of Kansas law and not a part of the KCCP.

8. SAME—Sex Offender Definition. K.S.A. 2019 Supp. 22-4902(b)(7) defines "sex offender" as "any person who . . . has been convicted of an offense that is comparable to any crime defined in this subsection," which includes sexual battery as defined in K.S.A. 2019 Supp. 21-5505(a).

9. CRIMINAL LAW—Crime of Sexual Battery under Shawnee Municipal Code and State Statute Comparable. The crime of sexual battery under the Uniform Public Offense Code adopted by the City of Shawnee is identical to K.S.A. 2019 Supp. 21-5505(a) and is therefore comparable. VOL. 58 COURT OF APPEALS OF KANSAS 561

City of Shawnee v. Adem

10. KANSAS OFFENDER REGISTRATION ACT—Registration Require- ment under KORA Apply to Municipal Court Convictions. A municipal court judge is required to impose the registration requirement prescribed by KORA on a defendant convicted of sexual battery under the Uniform Public Offense Code. The same is true for a district court hearing an appeal from a municipal court on such a charge. KORA itself imposes the duty to register on the offender, rather than the court's order.

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opin- ion filed July 31, 2020. Affirmed.

Richard P. Klein, of Olathe, for appellant.

Jenny L. Smith, assistant city attorney, for appellee.

Before POWELL, P.J., GARDNER, J., and WALKER, S.J.

WALKER, J.: Asnake Adem appeals from the order of the district court, hearing the appeal from the municipal court of the City of Shawnee (City), directing him to register as a sex offender under the Kansas Offender Registration Act (KORA) after his conviction for sexual battery under the City ordinance. Adem contends the sentence was illegal because the district court lacked jurisdiction to enter such a registration order. We disagree with Adem that the district court erred and affirm the order requiring him to register as a sex offender.

FACTS

On April 13, 2017, C.R. went to a Kansas City Royals base- ball game with a few of her friends, and after the game went to Johnny Kaw's, a bar in the Westport area of Kansas City, Mis- souri. C.R. and her friend left Johnny Kaw's between 1-1:30 a.m. on April 14, and the two decided to split a taxi home. Adem, the taxi driver, first dropped off C.R.'s friend at her home in Overland Park and then started to drive to Shawnee, where C.R. lived. During the drive, Adem pulled the car over and asked C.R. to move to the front seat. After she switched seats, Adem resumed driving and asked C.R. a handful of times to go to a bar and have a drink with him, but she repeatedly told him she did not want to. Adem pulled the car over again a short time later and embraced C.R. very tightly from the driver's seat. C.R. estimated the 562 COURT OF APPEALS OF KANSAS VOL. 58

City of Shawnee v. Adem embrace lasted between 15 to 30 seconds and remembered feeling his prickly beard against her cheek. C.R. did not tell Adem no or push him away because her phone was dead, and she did not want to upset Adem. Adem continued driving C.R. home after the first embrace. Adem subsequently started to rub C.R.'s forearm and thigh, which C.R. thought was sexual in nature. Around this time, C.R. changed her destination because the new location was closer and other people were going to be there. Before arriving at the new destination Adem pulled the car over and once again embraced C.R. C.R. arrived at her destination shortly after, and Adem embraced her for a third time in a similar manner. C.R. went to the Shawnee Police Department after she woke up later that morning and provided a written statement of the events. On April 14, 2017, the City charged Adem with sexual battery in violation of Shawnee Municipal Code Sec. 9.01.010, 3.2.1. On April 18, 2018, Adem was found guilty of sexual battery in Shawnee Municipal Court and filed a notice of appeal to the District Court of Johnson County. On April 8, 2019, a jury found Adem guilty of sexual battery. The district court sentenced Adem to serve 180 days in jail, then suspended the sentence and imposed 12 months of probation. Adem was also ordered to register as a sex offender pursuant to KORA. Adem has timely appealed from the district court's directive that he register as a sex offender.

ANALYSIS

Jurisdiction of this court

At the outset, we must address the City's contention that this court lacks jurisdiction to review Adem's appeal. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to cer- VOL. 58 COURT OF APPEALS OF KANSAS 563

City of Shawnee v. Adem tain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 304 Kan. at 919. The City argues that since registration under KORA is statutorily required and arises out of the conviction itself, the registration requirement is not part of a defendant's sentence. And because there has been no legal action against Adem for his registration, or lack thereof, the City contends there has not yet been a final judgment or order from the district court. Therefore, it believes the registration requirement is not yet ripe for appellate review because "the District Court did not order Defendant to register nor did the District Court enter a judgment against him, the Court merely provided Defendant with a Notice of Duty to Register." In State v. Marinelli, 307 Kan. 768, 769, 415 P.3d 405 (2018), the Kansas Supreme Court addressed appellate court jurisdiction in a criminal defendant's direct appeal of his KORA registration responsibilities. Marinelli pled no contest to aggravated assault in district court, but, for unexplained reasons, the "Defendant's Ac- knowledgment of Rights and Entry of Plea" document indicated that he would not be subject to KORA registration. 307 Kan. at 770. However, he was told at the sentencing hearing that he had a duty to register under KORA. Marinelli filed a direct appeal, and his notice of appeal stated he was "challenging 'all adverse rulings of the court,' although only one aspect [was] in question—the district court's alleged deviations from KORA's statutory procedures." 307 Kan. at 772. Our Supreme Court resolved the jurisdictional issue before reaching the merits of the case. After a brief recitation of the legislative history and precedent involving the relationship between plea agreements and K.S.A. 22-3602, the court ultimately addressed two jurisdictional questions. "First, is there appellate jurisdiction over the challenged acts because Marinelli's registration orders are part of his criminal sentence? If not, can Marinelli nevertheless raise his KORA challenges in a direct appeal under K.S.A. 2017 Supp. 22-3602(a) because they do not relate to his judgment of conviction?" 307 Kan. at 779. The Supreme Court concluded that the registration requirements were not a part of Marinelli's criminal sentence. 307 Kan. at 786. Before it arrived at this conclusion, though, the court noted 564 COURT OF APPEALS OF KANSAS VOL. 58

City of Shawnee v. Adem that "the generalization that KORA obligations arise 'automati- cally by operation of law without court involvement,' as the [State v.] Simmons[, 50 Kan. App. 2d 448, 463, 329 P.3d 523 (2014),] panel and its progeny have repeatedly found, is wrong." 307 Kan. at 785. The court stated that "aspects of KORA appear self-exe- cuting, but others depend on a district court's exercise of discretion or judicial fact-finding." 307 Kan. at 784. The court then recognized different categories of KORA registration, including: when registration is "required by judicial decision"; "registration based on court factual findings"; "registration for otherwise non-KORA crimes by inclusion in a diversionary agreement, probation order, or juvenile sentencing order"; and a final category including "registration requirements that can be characterized as those based on the convicted offense." 307 Kan. at 784-85. After it rejected jurisdiction on the basis that KORA registration was part of a criminal sentence, our Supreme Court considered whether K.S.A. 2017 Supp. 22-3602(a) authorized Mari- nelli's appeal. The court focused on the language of the first sentence of K.S.A. 2017 Supp. 22-3602(a). Specifically, that "'an appeal . . . may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.'" 307 Kan. at 787. The court concluded that jurisdiction existed because the expansive language in the first sentence of the statute covered instances where registration is triggered due to a district court's specific finding, instances "when the registration obligation is imposed as an act of judicial discretion," and "even those instances when registration is based on the convicted offense." 307 Kan. at 787. The court also explained that allowing direct appeals on KORA issues promotes judicial economy and is consistent with K.S.A. 22-2103 because it allows a defendant to avoid duplicative steps, such as pursuing a K.S.A. 60-1507 motion or initiating separate litigation. 307 Kan. at 787-88. Despite originating in municipal court, we conclude Adem's appeal fits within the jurisdictional parameters outlined in Mari- nelli. Similar to Marinelli, Adem's notice of appeal stated that he VOL. 58 COURT OF APPEALS OF KANSAS 565

City of Shawnee v. Adem

"appeals the conviction and all adverse rulings, including but not limited to, the registration requirement under the Kansas Offender Registration Act to the Court of Appeals to the State of Kansas." See 307 Kan. at 772. The fact that Adem was convicted by a jury as opposed to a plea does not disturb the rule pronounced in Mari- nelli. See State v. Carter, 311 Kan. 206, 209, 459 P.3d 186 (2020). Thus, we have jurisdiction to consider Adem's appeal.

Applicability of KORA to municipal court convictions

As his single issue on appeal, Adem contends that the district court erred in applying KORA to a municipal conviction. Adem argues that convictions stemming from violations of municipal ordinances do not require registration under KORA because they are outside the scope of the Kansas Code of Criminal Procedure (KCCP). Whether KORA applies to municipal court convictions involves statutory interpretation, which is a question of law subject to unlimited review. Marinelli, 307 Kan. at 774. The City asserts that Adem is required to register as a sex offender because the Shawnee Municipal Code uses the same definition for sexual battery as the state statute, and KORA registration is required for individuals convicted of sexual battery as defined by K.S.A. 2016 Supp. 21-5505(a). The City focuses on the specific language of the statute, arguing that if the Legislature did not want KORA to apply to municipal code violations, "the legislature would have indicated registration was required upon [those] convicted of sexual battery pursuant to K.S.A. [21]-5505(a), not as defined in it." Additionally, the City contends that the Legisla- ture would have listed municipal code convictions in K.S.A. 2018 Supp. 22-4902(t)(1) if it did not intend for KORA to apply, because that is where other offenses that do not require registration are listed. After careful consideration of this point, we agree with the City's position. The key question here is whether the KORA is an organic part of the KCCP, or is in fact an independent and self-contained section of our statutes. The scope of the KCCP is defined in K.S.A. 22-2102, which provides: "The provisions of this code shall govern proceedings in all criminal cases in the courts of the state of Kansas, but shall have application to proceedings in police and 566 COURT OF APPEALS OF KANSAS VOL. 58

City of Shawnee v. Adem municipal courts only when specifically provided by law." There is no specific language in either the KCCP or the KORA which indicates a legislative intent that the KORA be treated functionally as a subset of the KCCP. Likewise, we have found nothing in our caselaw requiring that KORA be interpreted in such a fashion. The Kansas Revisor of Statutes is directed by law to "prepare and publish Kansas Statutes Annotated." K.S.A. 46-1211(b). There is no other statutory guidance to the Revisor in performing this task. When new laws are enacted by our Legislature, as the first iteration of KORA (originally known as the "Kansas Habitual Sex Offender Act") was in 1993, the Revisor assigns them to a chapter and article of the Kansas Statutes Annotated along with corresponding statute numbers. See L. 1993, ch. 253, § 17. If a new enactment amends an existing law or its language provides direction that it is to be incorporated into an existing named act, the placement within the statute book is obvious. But since we have been unable to locate any legislatively mandated methodology for classification of statutes, it is apparent that the Revisor utilizes broad editorial discretion as to the placement and number- ing of new laws within Kansas Statutes Annotated. It is clear to us that this is what happened with the original version of KORA. (The name was changed from the original 1993 version to the existing title when extensive broadening of the act beyond sex offenses occurred in 1997.) See 1997, ch. 181, § 7. The Revisor obviously concluded that since the subject matter of KORA (in its predecessor form) dealt with additional sanctions on certain criminal offenders which flowed directly from their convictions, it was logical to classify them with like items in Chapter 22 under the rubric "Kansas Code of Criminal Procedure." Obvi- ous, also, is the fact that at that time the Revisor did not have the benefit of our Supreme Court's thinking in State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017), State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), and similar cases holding that the Leg- islature intended KORA to be a regulatory scheme that is civil and nonpunitive for all classes of offenders. Huey, 306 Kan. at 1009. So it is that KORA has become an isolated outpost in its current location within our statute books—an island of civil law sur- rounded by a sea of criminal procedure. If there once was any VOL. 58 COURT OF APPEALS OF KANSAS 567

City of Shawnee v. Adem doubt whether KORA is separate from the KCCP, we conclude that none should now exist. We hold that KORA acts in concert with, but is not a part of, either the KCCP in general or our sentencing statutes in particular. It is its own separate act with its own regulatory purposes despite its current home as Article 49 of Chapter 22 of Kansas Statutes Annotated. The point that the KCCP cannot be read to fully embrace all the articles which have been lodged in Chapter 22 by the Revisor is buttressed by the fact that the very next section following the KORA, Article 50, contains enabling legislation for the "National Crime Prevention and Privacy Compact," which obviously serves a worthy, but totally independent, purpose from the KCCP. Had Adem been convicted of sexual battery under K.S.A. 2016 Supp. 21-5505(a) in a district court, he clearly would have been subject to KORA under K.S.A 2018 Supp. 22-4902(b)(5), which specifically references the state sexual battery statute. But in his appeal Adem complains that there is no statute that specifically provides for KORA to apply to violations of municipal codes. This is absolutely correct, but we think his argument misses the point. In K.S.A. 2018 Supp. 22-4902(b)(7), the KORA defines "sex offender" as "any person who . . . has been convicted of an offense that is comparable to any crime defined in this subsection, or any out-of-state conviction for an offense that under the laws of this state would be an offense defined in this subsection." (Emphases added.) Thus, the clear language of this section requires the application of KORA to a "person" convicted of an "offense that is comparable," and by its terms neither includes nor excludes convictions in municipal court. In short, the type of court does not matter under this subsection; it is the comparability of the offense of conviction with the "crime defined" under state law in this section that is the key. And it is undisputed in this case that the elements of sexual battery under the Uniform Public Offense Code adopted by the City of Shawnee are identical to those of sexual battery under K.S.A. 2019 Supp. 21-5505(a). The legislative intent here comes into even sharper focus when we consider the second clause of K.S.A. 2018 Supp. 22- 4902(b)(7), which applies KORA to "any out-of-state conviction 568 COURT OF APPEALS OF KANSAS VOL. 58

City of Shawnee v. Adem for an offense that under the laws of this state would be an offense defined in this section." (Emphasis added.) If we were to adopt the rationale urged on us by Adem, i.e., that Kansas municipal court convictions of sexual battery should not trigger application of KORA, we could arrive at a potential result where a sexual battery conviction in Kansas City, Missouri, Municipal Court would trigger application of KORA, but Adem's sexual battery conviction in the City of Shawnee, just over a dozen miles and one state line away, would not. We cannot believe that our Legislature contemplated such an absurd result. In our opinion the "comparability" of the crime is the key, not the court nor the geography. We note Adem's argument that the Legislature has specifically made other sections of the KCCP applicable to municipal court proceedings. See, e.g., K.S.A. 22-3404 (trials in municipal courts); K.S.A. 2019 Supp. 22-3609 (appeals from municipal courts). And in other contexts, the Legislature has also specifically included convictions for violations of municipal ordinances when defining offenses. See, e.g., K.S.A. 2019 Supp. 8-1567(i)(3)(B) (driving under the influence); K.S.A. 2019 Supp. 21-5111(i) (domestic violence); K.S.A. 2019 Supp. 21-6301(a)(18) (criminal use of weapons). But, once again, we think this focus on how the KCCP applies or does not apply to municipal court proceedings is irrelevant to the issue of KORA application to persons convicted in municipal court. Given our analysis that KORA is civil in nature and hence separate and apart from the KCCP, we assess this entire argument as moot. Consequently, it matters not at all that there is no legislative grant of authority in the KCCP for courts to order KORA registration. As a procedural matter, appeals from municipal courts are tried de novo in the district court. K.S.A. 22-3610(a). In this case, as the law requires, the district court was hearing an appeal from the municipal court. The district court sentenced Adem and ordered him to register under KORA. Adem contends the court lacked authority to do so. And our appellate courts have held that "[i]f a municipal court has no authority to take a particular action, neither does the district court on an appeal of this nature." City of Gardner v. Barca, No. 114,613, 2016 WL 5344133, at *2 (Kan. App. 2016) (unpublished opinion) (citing City of Overland Park VOL. 58 COURT OF APPEALS OF KANSAS 569

City of Shawnee v. Adem v. Estell & McDiffett, 225 Kan. 599, 602-03, 592 P.2d 909 [1979]; City of Dodge City v. Anderson, 20 Kan. App. 2d 272, 274, 886 P.2d 901 [1994]). Since we have concluded that KORA applies to convictions for sexual battery under municipal ordinances comparable to state law, as here, a municipal judge would be required to impose a registration requirement on Adem. Accordingly, the district judge hearing an appeal from a municipal court was required to impose the KORA registration requirement. But, we also note in passing, Marinelli teaches that "[KORA] itself imposes the duty to register upon [the offender], rather than the court's order. See K.S.A. 2017 Supp. 22-4903(a)." 307 Kan. at 790. Thus the registration duty for Adem would exist whether or not the district court ordered it. Adem's arguments are without merit. The record demonstrates that the district judge did not err when he ordered Adem to register as a sex offender because of a violation of the City of Shawnee municipal ordinance prohibiting sexual battery.

Affirmed. 570 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell

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No. 121,094

STATE OF KANSAS, Appellant, v. IVAN ROZELL, Appellee.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—Proximate Result Jurisdiction—Determination. Whether proximate result jurisdiction exists to justify bringing criminal charges in Kansas hinges on whether the proximate result of a material element of a person's offense occurred in Kansas or whether the proximate result of a substantial and integral part of a person's overall continuing criminal plan occurred in Kansas. K.S.A. 2019 Supp. 21-5106(b).

2. SAME—Proximate Result Jurisdiction—Consideration. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person's out-of-state criminal acts within Kansas only if the statutory language of that person's charged crime considered such negative consequences.

3. SAME—Negative Consequences of Out of State Criminal Acts Not in Lan- guage of Statutes. Neither the making false information statute, K.S.A. 2019 Supp. 21-5824(a), nor the fraudulent insurance act statute, K.S.A. 2019 Supp. 40-2,118(a), consider the negative consequences of a person's out-of- state criminal acts in the language of the statute.

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed August 7, 2020. Affirmed.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellant.

No appearance by appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and POWELL, JJ.

ARNOLD-BURGER, C.J.: The State of Kansas appeals the district court's dismissal of charges it brought against Ivan Rozell for making false information and committing a fraudulent insurance act. The district court dismissed the charges for lack of jurisdiction. On appeal, the State argues that Kansas has jurisdiction to prosecute Rozell under K.S.A. 2019 Supp. 21-5106(b)'s proximate result jurisdiction provision. It additionally argues that venue for its prosecution against Rozell was proper in Wyandotte County. VOL. 58 COURT OF APPEALS OF KANSAS 571

State v. Rozell

Because we find that Kansas courts may consider the negative consequences of a person's out-of-state criminal acts within Kan- sas only if the statutory language of that person's charged crime considered such negative consequences, the State’s argument fails. As a result, we affirm the decision of the district court.

FACTUAL AND PROCEDURAL HISTORY

On March 11, 2017, Rozell and Saul Lopez were in a car accident in Missouri. When the accident occurred, nobody appeared to be injured. Moreover, the cars involved had only minor struc- tural damage. Accordingly, Rozell and Saul decided to part after Saul, who was at fault, gave Rozell his car insurance information. Because Saul's father, Julio Lopez, insured Saul's car, Saul provided Rozell with Julio's insurance information. Julio, who lived in Wyandotte County, Kansas, insured the car through State Farm. A couple of days later, on March 13, 2017, Rozell, who lived in Missouri, contacted State Farm, opening a bodily injury claim against Julio's policy. At this time, Rozell spoke to Daniel Rose, a State Farm claims representative who worked in Tennessee. Then, on March 22, 2017, Rozell faxed a hospital bill to Rose in Ten- nessee to support his claim. This hospital bill stated that on March 14, 2017, Rozell received $46,069 worth of medical services at a Missouri hospital. Rose, however, questioned the authenticity of Rozell's hospital bill. Rose noted that the bill did not look official and the medical services charged seemed excessive for Rozell's alleged injuries. Additionally, evidence indicated that Rozell had made an identical claim with another insurance agency. Thus, Rose referred Rozell's claim to State Farm's Special Investigation Unit. At this point, Michael Haire, a claims specialist in State Farm's Special Investigation Unit, began investigating the authenticity of Rozell's hospital bill. Haire worked from his State Farm office located in Sedgwick County, Kansas. And during his investigation, Haire and Rozell had several telephone conversations about Rozell's claim. It is unclear from Haire's testimony at the preliminary hearing whether Rozell ever presented false information directly to Haire. It appears their first conversation involved Rozell telling Haire that one of the two bills that had been submitted was not part of a claim related to the accident being 572 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell investigated. In any event, the State does not rely on Rozell's conversations with Haire to allege any fraudulent activity in Kansas. Ultimately, hospital records established that Rozell had received $46,069 worth of medical services on March 9, 2017—two days before the car accident. Thus, Haire concluded that Rozell altered the date on the hospital bill so State Farm would pay for medical services unrelated to his car accident with Saul. Based on the preceding evidence, the State brought charges against Rozell in the Wyandotte County District Court. Specifi- cally, the State charged Rozell one count of making false information contrary to K.S.A. 2017 Supp. 21-5824(a) and with one count of fraudulent insurance act contrary to K.S.A. 2017 Supp. 40-2,118(a), (e). The State listed State Farm as the victim of Rozell's crimes. Rozell responded to the charges by moving to dismiss the State's charges against him for lack of jurisdiction. Rozell asserted that Kansas lacked jurisdiction to charge him with any crime because if he committed a crime, he did so in either Missouri or Ten- nessee. In making this argument, Rozell noted that he got into the car accident in Missouri, that he received medical treatment in Missouri, that he contacted State Farm from Missouri, and that he faxed the hospital bill to Rose in Tennessee. Nevertheless, the State countered that Rozell was subject to prosecution under Kansas law. It then further countered that Wy- andotte County was the proper venue for its prosecution. In making its argument, the State emphasized that Rozell's bodily injury claim was against Julio's State Farm insurance policy, and Julio lived in Wyandotte County, Kansas. Then, the State noted that because Julio lived in Kansas, his State Farm insurance policy complied with Kansas' insurance laws. Based on those facts, the State asserted that Rozell attempted to defraud a "Kansas insurance policy." Next, the State pointed to K.S.A. 2017 Supp. 21-5106(b), which provides that Kansas courts have jurisdiction over a crime when (1) the proximate result of a constituent and material element of a person's offense occurs within the state, or (2) the proximate result of a substantial and integral part of a person's overall continuing criminal plan occurs within the state. According to the VOL. 58 COURT OF APPEALS OF KANSAS 573

State v. Rozell

State, because Rozell's fraudulent actions affected a Kansas insurance policy, his crime also affected Kansas insurance policyholders who may endure policy rate increases because of Rozell's fraud. In turn, the State argued that under K.S.A. 2017 Supp. 21- 5106(b)(3)'s proximate result jurisdiction provision, Kansas had jurisdiction to charge Rozell with making false information and committing a fraudulent insurance act. Lastly, the State asserted that Wyandotte County was the proper venue for its prosecution because the Kansas insurance policy Rozell sought to defraud belonged to a Wyandotte County resident. The district court held a hearing on Rozell's motion. Ulti- mately, the district court agreed with Rozell, ruling that Kansas lacked jurisdiction. In reaching this ruling, the district court explained that the statutes and caselaw the State relied on to argue that Kansas had jurisdiction to prosecute Rozell under K.S.A. 2017 Supp. 21-5106(b)(3)'s proximate result jurisdiction provision did not actually support its argument. Because the district court determined that it lacked jurisdiction over Rozell's case, it also implicitly ruled that Wyandotte County was the wrong venue for the State's prosecution. The State timely appealed the district court's order granting Rozell's motion to dismiss for lack of jurisdiction.

ANALYSIS

On appeal, the State makes the same arguments about jurisdiction and venue that it made before the district court. That is, the State argues that Kansas may prosecute a person who attempts to defraud a "Kansas insurance policy." According to the State, a "Kansas insurance policy" is any insurance policy issued to a Kan- sas resident. The State contends that because a Kansas insurance policy belongs to a Kansas resident, the proximate result of a person's fraud on a Kansas insurance policy occurs in Kansas. There- fore, the State contends that Kansas has jurisdiction to prosecute all persons who seek to defraud a Kansas insurance policy under K.S.A. 2019 Supp. 21-5106(b)(3)'s proximate result jurisdiction provision. Because it contends Rozell sought to defraud a Kansas insurance policy, the State argues that the district court erred by granting Rozell's motion to dismiss for lack of jurisdiction. And 574 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell for this same reason, the State argues that Wyandotte County was the proper venue for its charges against Rozell. Rozell has not filed an appellee's brief in response to the State's arguments. Accordingly, only the State's arguments are before this court.

Our standard of review is de novo.

Because this case involves whether the district court had subject matter jurisdiction over the case, we exercise de novo review. State v. Woolverton, 284 Kan. 59, 67, 159 P.3d 985 (2007). More- over, to the extent we are required to interpret the statutes at issue here, our review is also de novo. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

We review the law related to proximate result jurisdiction.

Before considering the State's underlying jurisdiction argument, it is first important to consider generally when Kansas ob- tains jurisdiction to prosecute a person for criminal acts that were seemingly committed out of state. A person is subject to prosecution and punishment under the laws of Kansas as set out in K.S.A. 2019 Supp. 21-5106. Subsec- tion (a)(1) states that "[a] person is subject to prosecution and punishment under the law of this state if: The person commits a crime wholly or partly within this state." And subsection (b) defines what constitutes a crime committed "partly within this state." Sub- section (b) provides:

"A crime is committed partly within this state if: (1) An act which is a constituent and material element of the offense; (2) an act which is a substantial and integral part of an overall continuing criminal plan; or; (3) the proximate result of such act, occurs within the state."

Therefore, for jurisdiction to exist under K.S.A. 2019 Supp. 21- 5106(b), either the proximate result of a material element of a person's offense must occur in Kansas or the proximate result of a substantial and integral part of a person's overall continuing criminal plan must occur in Kansas. Both our Supreme Court and this court have applied prior versions of K.S.A. 2019 Supp. 21-5106(b)(3) to determine whether Kansas had what has been termed "proximate result jurisdiction" VOL. 58 COURT OF APPEALS OF KANSAS 575

State v. Rozell to prosecute a defendant—a reference to the statutory language. The State has relied on three of those decisions—State v. Jurdan, 258 Kan. 848, 908 P.2d 1309 (1995), State v. Johnson, 40 Kan. App. 2d 397, 192 P.3d 661 (2008), and State v. Sokolaski, 26 Kan. App. 2d 333, 987 P.2d 1130 (1999). We will examine each. In Jurdan, Jurdan bought a car from a dealership in Kansas, with the dealership holding a lien on Jurdan's newly purchased car. The dealership, however, later discovered that Jurdan had sold the car with a clear title in Missouri. Based on the preceding, the State of Kansas charged Jurdan with "impairing a security interest," which prohibited "'selling, exchanging, or otherwise disposing of any personal property subject to a security interest without the written consent of the secured party, with intent to defraud the secured party, where such sale . . . is not authorized by the secured party under the terms of the security agreement.'" 258 Kan. at 850. But the district court dismissed Jurdan's case, ruling that Kansas lacked jurisdiction to prosecute Jurdan since she sold the car with a clear title in Missouri. Our Supreme Court reversed the district court. In doing so, the court first analyzed the plain language of the "impairing a security interest" statute. The court noted that the versions of the statute prohibiting impairment of a security interest that existed prior to 1994 concerned only the "fate of the collateral." 258 Kan. at 852. But the Legislature subsequently amended the statute with the heading "impairing a security interest." K.S.A. 1994 Supp. 21- 3734(a)(2) (now K.S.A. 2019 Supp. 21-5830[a][2]). The court explained that because the current statute was entitled "impairing a security interest," it was clear that the Legislature meant for the crime of "impairing a security interest" to "concern[] not only . . . the fate of the collateral but also the resultant damage to the security interest." 258 Kan. at 852. Hence, the court determined that the impairment of a security interest was a central part of the crime of impairing a security interest. The court then explained that "while the disposition of the vehicle, which was the collateral subject to the security interest, may have occurred out of state, the effect of that act was to impair the attached security interest held by the secured lienholder in . . . Kansas." 258 Kan. at 853. Accordingly, the court held that Kansas had proximate result jurisdiction to prosecute Jurdan for impairing 576 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell a security interest: "The sale in Missouri [was] the proximate cause of the impairment of the lienholder's rights in Kansas under the security agreement." 258 Kan. at 854. In Johnson, Johnson prevented her minor granddaughter from testifying in an upcoming Reno County, Kansas trial. Johnson, who lived in Colorado, hid her granddaughter in New Mexico with a relative. After nationwide search to find the granddaughter, Johnson was subsequently arrested in Kansas. She was charged with aggravated intimidation of a witness in Reno County, Kan- sas. Although Johnson pleaded guilty as charged, she challenged the district court's jurisdiction on appeal. Specifically, she argued that Kansas could not prosecute her for aggravated intimidation of a witness because she committed none of the elements of aggravated intimidation of a witness within Kansas. The State countered that it had the authority to prosecute Johnson because John- son had barred her granddaughter from testifying at a Kansas trial. This court agreed. 40 Kan. App. 2d at 399-400. In affirming the district court, this court noted that the crime of aggravated intimidation of a witness requires a defendant to "knowingly and maliciously prevent[] or dissuad[e], or attempt[] to prevent or dissuade, any witness or victim from attending or testifying at any civil or criminal trial." (Emphasis added.) 40 Kan. App. 2d at 399 (citing K.S.A. 21-3832[a][1]). It then explained: "Johnson attempted to prevent the witness . . . from attending or testifying at [the] trial in Reno County. Thus, the proximate result of Johnson's unlawful act occurred in [Kansas]. Based on K.S.A. 21-3104[now K.S.A. 2019 Supp. 21-5106], the [district court] properly exercised its jurisdiction in convicting and sentencing Johnson." 40 Kan. App. 2d at 400. Last, in Sokolaski, Sokolaski was convicted of criminal nonsupport in Kansas, where his ex-wife and child lived. On appeal to this court, Sokolaski argued that Kansas could not prosecute him for criminal nonsupport because Missouri issued his divorce and child support order. Nevertheless, this court rejected Soko- laski's argument. In doing so, this court explained that when determining whether Kansas has jurisdiction to prosecute through proximate result jurisdiction, courts "focus on the consequences VOL. 58 COURT OF APPEALS OF KANSAS 577

State v. Rozell within their borders of actions taken elsewhere." 26 Kan. App. 2d at 334. Because Sokolaski's child lived in Kansas, this court held that "it [was] clear that [Sokolaski's] criminal nonsupport occurred partly in Kansas and the proximate result of his actions (the failure to provide support for [his child]) occurred within the state." 26 Kan. App. 2d at 334. This review of the relevant law concerning K.S.A. 2019 Supp. 21-5106(b)(3)'s proximate result jurisdiction provision reveals multiple problems with the State's broad position that Kansas may prosecute a person who attempts to defraud a Kansas insurance policy. There are two reasons we believe the State's analysis is wrong.

The State fails to analyze the elements of the charged crimes.

To begin with, the State misses the point on its proximate result jurisdiction argument by failing to analyze the elements of the charged offenses. To review, the Jurdan, Johnson, and Sokolaski courts decided whether proximate result jurisdiction existed by analyzing the elements of the defendant's crime under prior but similar versions of K.S.A. 2019 Supp. 21-5106(b). This is because whether proximate result jurisdiction exists hinges on the following: (1) whether the proximate result of a material element of a person's offense occurred in Kansas, or (2) whether the proximate result of a substantial and integral part of a person's overall continuing criminal plan occurred in Kansas. Here, however, the bulk of the State's argument involves Rozell's alleged attempt to defraud a "Kansas insurance policy." The State contends that Kansas should have proximate result jurisdiction to prosecute Rozell because insurance policies issued in Kansas are inextricably tied to Kansas. In making this argument, it notes the following: (1) that insurance policies issued in Kansas must comply with Kansas law; (2) that fraudulent claims against a Kansas insurance policy may result in the insurer increasing its policy rates on the Kansas policyowner; and (3) that fraudulent claims against a Kansas insurance policy may result in the insurer increasing its policy rates on all Kansans with insurance policies. Yet, under K.S.A. 2019 Supp. 21-5106(b), the fact Rozell allegedly attempted to defraud a Kansas insurance policy is irrelevant in determining the existence of proximate result jurisdiction. 578 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell

Again, the relevant inquiry is (1) whether the proximate result of a material element of Rozell's alleged crimes occurred in Kansas, or (2) whether the proximate result of a substantial and integral part of Rozell's alleged overall continuing criminal plan occurred in Kansas. But the State never engages in this type of analysis. That is to say, the State never analyzes the elements of the making false information and fraudulent insurance act statutes under K.S.A. 2019 Supp. 21-5106(b) to determine the existence of proximate result jurisdiction. In fact, the State only mentions its making false information and fraudulent insurance act charges against Rozell in passing. Furthermore, the remainder of the State's proximate result jurisdiction argument hinges on a superficial comparison of its case to the Jurdan case. The State argues that its proximate result jurisdiction challenge is comparable to the proximate result jurisdiction challenge it successfully made in Jurdan by asserting the following:

"In Jurdan and in this case, the defendants committed acts necessary to complete their respective crimes outside of Kansas. The purpose of both of these defendants' actions was to defraud a legal agreement, either a security interest or an insurance policy, located in Kansas. The proximate result of both acts was felt in Kansas as the security interest in Jurdan was rendered unenforceable, and the insurance policy in this case was subjected to a fraudulent claim. As in Jurdan, the proximate result of the Defendant's criminal acts was felt in Kansas. Under K.S.A. 21-5106(b)(3) and the reasoning in Jurdan, Kansas courts have jurisdiction over this case because the proximate result of the Defendant's criminal acts occurred in Kansas."

Thus, we can summarize the State's argument as follows: In Jurdan, our Supreme Court held that the proximate result of fraud involving a Kansas legal agreement occurred in Kansas. Here, Rozell allegedly attempted to defraud a Kansas legal agreement, i.e., Julio's Kansas insurance policy. Thus, Kansas has proximate result jurisdiction to prosecute Rozell because Rozell, like Jurdan, attempted to defraud a Kansas legal agreement. Yet, as already discussed, our Supreme Court did not hold that Kansas had proximate result jurisdiction to prosecute Jurdan simply because it was Jurdan's goal to defraud a Kansas legal agreement. To the contrary, after analyzing the impairing a security interest statute, the court determined that based on its title, a VOL. 58 COURT OF APPEALS OF KANSAS 579

State v. Rozell key part of the impairing a security interest statute was the impairment of the security interest. Because Jurdan's criminal act of selling the car with free title in Missouri impaired the security interest held by the dealership located in Kansas, the Jurdan court held that a proximate result of Jurdan's criminal act occurred within Kansas. 258 Kan. at 854. Simply put, the plain language of K.S.A. 2019 Supp. 21- 5106(b) states that proximate result jurisdiction determinations hinge on whether the proximate result of a material element of a person's offense occurred in Kansas or whether the proximate result of a substantial and integral part of a person's continuing criminal plan occurred in Kansas. But in this case, the State has not engaged in such analysis. Instead, the State asks this court to make a broad holding that Kansas has proximate result jurisdiction to prosecute any person who seeks to defraud a Kansas insurance policy (1) based on policy arguments that are only tangentially related to its charges against Rozell and (2) based on a superficial comparison of its case to the Jurdan case.

The plain statutory language of the crimes charged does not support a finding of proximate cause jurisdiction.

By failing to analyze the elements of the offenses charged, the State ignores the plain language of K.S.A. 2019 Supp. 21- 5824(a)—the making false information statute—and K.S.A. 2019 Supp. 40-2,118(a)—the fraudulent insurance act statute. The plain language of those statutes does not support that Kansas has jurisdiction to prosecute persons just because their fraudulent acts involved a Kansas insurance policy. As a result, its proximate result jurisdiction argument is still unpersuasive. K.S.A. 2019 Supp. 21-5824(a) defines making false information as follows:

"[M]aking, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or felony offense or induce official action."

580 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell

Thus, as applied to this case, the material elements of making a false information are as follows: (1) that Rozell made a document, (2) that Rozell falsified a material matter within that document, and (3) and that Rozell had an intent to defraud when making that document. In turn, for Kansas to have proximate result jurisdiction to prosecute Rozell for making false information, one of the following must be true: (1) The proximate result of a material element of Rozell's making false information charge occurred within Kansas, or (2) the proximate result of a substantial and integral part of Rozell's continuing criminal plan in the commission of making false information occurred within Kansas. Meanwhile, K.S.A. 2019 Supp. 40-2,118(a) states:

"[A] 'fraudulent insurance act' means an act committed by any person who, knowingly and with intent to defraud, presents, causes to be presented or pre- pares with knowledge or belief that it will be presented to or by an insurer, pur- ported insurer, broker or any agent thereof, any written, electronic, electronic impulse, facsimile, magnetic, oral, or telephonic communication or statement as part of, or in support of, an application for the issuance of, or the rating of an insurance policy for personal or commercial insurance, or a claim for payment or other benefit pursuant to an insurance policy for commercial or personal insurance which such person knows to contain materially false information concerning any fact material thereto; or conceals, for the purpose of misleading, information concerning any fact material thereto."

Accordingly, as applied to this case, the material elements of a fraudulent insurance act are as follows: (1) that Rozell presented a document to an insurer; (2) that Rozell presented this document knowing that it contained materially false information, (3) that Rozell presented this document in support of some insurance policy benefit, and (4) that Rozell did the preceding with the intent to defraud. In turn, for Kansas to have proximate result jurisdiction to prosecute Rozell for committing a fraudulent insurance act, one of the following must be true: (1) The proximate result of a material element of Rozell's fraudulent insurance act charge occurred within Kansas, or (2) the proximate result of a substantial and integral part of Rozell's continuing criminal plan in the commission of a fraudulent insurance act occurred within Kansas. Again, in its brief, the State never explains what material elements of making false information and fraudulent insurance act that Rozell committed out of state but which had consequences VOL. 58 COURT OF APPEALS OF KANSAS 581

State v. Rozell that occurred in Kansas. Nor does the State contend that the proximate result of some substantial and integral part of Rozell's alleged continuing plan in the commission of making false information and a fraudulent insurance act occurred in Kansas. Even so, the State's argument emphasizes how "[f]raud on an insurance policy issued in Kansas affects not only the individual Kansas policyholder whose rates and coverage may be impacted, but it also affects the overall rates and coverages available to all Kansas residents." (Emphasis added.) Moreover, an "intent to defraud" is an element of both making false information and committing a fraudulent insurance act. Thus, under a very liberal interpretation of the State's argument, it seems the State believes that the proximate result of a material element of Rozell's crimes—the "intent to defraud" element of both crimes—occurred in Kansas because defrauding a Kansas insurance policy negatively affects Kansas insurance policyholders. But our caselaw supports a narrower interpretation of the proximate result jurisdiction statute. When our Supreme Court determined that the State had proximate result jurisdiction to prosecute Jurdan for impairing a security interest, it did so because the impairing a security interest statute contemplated the resultant damage to security interest, and the damaged security interest was located in Kansas. Jurdan, 258 Kan. at 852-54. When this court determined that the State had proximate result jurisdiction to prosecute Johnson for aggravated intimidation of a witness, it did so because Johnson could not have been charged with this crime but for her intimidation of a witness set to testify in a Kansas trial. Johnson, 40 Kan. App. 2d at 400. And when this court determined that the State had proximate result jurisdiction to prosecute Soko- laski for criminal nonsupport, it did so because the crime of criminal nonsupport concerned the negative effects of nonsupport on the child, and Sokolaski's child lived in Kansas. Sokolaski, 26 Kan. App. 2d at 334. Hence, the Jurdan, Johnson, and Sokolaski courts held that Kansas had proximate result jurisdiction to prosecute the defendants because the negative effects of the defendants' actions were a key statutory part of the defendants' respective crimes. Here, however, nothing within K.S.A. 2019 Supp. 21-5824(a) speaks to the resultant damage stemming from a forged document. 582 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell

That is, the plain language of the making false information statute does not contemplate the consequences of a person's criminal actions when making false information. It merely criminalizes the act of falsifying a document with the intent to defraud. The same is true for K.S.A. 2019 Supp. 40-2,118(a). Nothing within the plain language of the fraudulent insurance act statute addresses the resultant damage stemming from a fraudulent insurance act. It merely criminalizes the act of falsifying a document with the intent to defraud an insurer to obtain some insurance policy benefit. And perhaps more significantly, like the making false information and fraudulent insurance act statutes, the impairing a security interest statute that our Supreme Court considered in Jurdan had an "intent to defraud" element. Once more, that statute stated that "impairing a security interest" was "selling, exchanging or otherwise disposing of any personal property subject to a security interest without the written consent of the secured party, with intent to defraud the secured party, where such sale, exchange or other disposition [was] not authorized by the secured party under the terms of the security agreement." (Emphasis added.) K.S.A. 1994 Supp. 21-3734(a)(2). Nevertheless, when the court determined that Kansas had proximate result jurisdiction to prosecute Jurdan for impairing a security interest, it did not do so because Jurdan sought to defraud a security interest held by a Kansan. That is to say, it did not do so because the proximate result of Jurdan's intent to defraud occurred in Kansas. In fact, the court mentioned the impairing a security interest's "intent to defraud" element just once, when it quoted the impairing a security interest statute. Instead, as discussed at length already, our Supreme Court determined that Kansas had proximate result jurisdiction to prosecute Jurdan because her crime was entitled "impairing a security interest," meaning a statutory part of her crime concerned the "resultant damage to the security interest." Jurdan, 258 Kan. at 852. In short, the Jurdan court's disregard of the "intent to defraud" element of the impairing a security interest statute is instructive. It supports the conclusion that when considering a crime with an "intent to defraud" element, the proximate result of a person's "intent to defraud" does not occur within Kansas just because that person sought to defraud a legal instrument belonging to a Kansas VOL. 58 COURT OF APPEALS OF KANSAS 583

State v. Rozell resident. In consequence, the Jurdan court's failure to reach this holding undermines any argument that the proximate result of Rozell's alleged commission of the "intent to defraud" element of both crimes occurred in Kansas just because fraud on a Kansas insurance policy negatively affects Kansas insurance policy hold- ers. This analysis is further bolstered by another case upon which the State relies, Woolverton, 284 Kan. 59. In Woolverton, Wool- verton challenged his criminal threat conviction for lack of subject matter jurisdiction. He asserted that Kansas could not prosecute him for a threat he made by telephone from his Missouri apartment to his ex-girlfriend, who heard the threat by phone in her Kansas home. Our Supreme Court disagreed, first noting that an element of criminal threat was communication of the threat. 284 Kan. at 69. It then determined that the district court properly exercised subject matter jurisdiction because Woolverton committed this material element of criminal threat within Kansas:

"Because the offense of criminal threat requires a communication, which involves both the declaration of a threat and the perception and comprehension of the threat, there are two acts comprising the constituent and material elements of the offense—speaking and perceiving. Although Woolverton spoke the threat in Missouri, [the victim] perceived the threat at her home in Johnson County, Kan- sas. Thus, an act comprising a constituent and material element of criminal threat was committed in Kansas." 284 Kan. at 70.

The Woolverton court did not determine Kansas had jurisdiction to prosecute Woolverton via proximate result jurisdiction as the State asserts. Instead, the Woolverton court determined that Woolverton committed a material element of his criminal threat in Kansas even though he was not within Kansas when he uttered the criminal threat. 284 Kan. at 70. Thus, to summarize, Kansas does not have proximate result jurisdiction to prosecute Rozell for making false information or committing a fraudulent insurance act just because Rozell allegedly intended to defraud a Kansas insurance policy. When determining proximate result jurisdiction, Kansas courts may consider the negative consequences of a person's out-of-state criminal acts within Kansas only if the statutory language of that person's charged crime considered such negative consequences. Here, however, neither the making false information statute nor the 584 COURT OF APPEALS OF KANSAS VOL. 58

State v. Rozell fraudulent insurance act statute considered such negative consequences. As a result, the State's argument is not persuasive. Accordingly, we affirm the district court's dismissal of the State's charges against Rozell for lack of jurisdiction. In turn, we need not consider the State's venue argument.

Affirmed. VOL. 58 COURT OF APPEALS OF KANSAS 585

State v. Vaughn

___

No. 121,340

STATE OF KANSAS, Appellee, v. REX C. VAUGHN, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Sentencing Defendant for New Felony While on Bond. A district court sentencing a defendant for a new felony committed while on felony bond under K.S.A. 2019 Supp. 21-6606(d) may impose a nonprison sanction or a prison sanction, even though the new crime of conviction otherwise presumes a nonprison sentence. If a prison sentence is imposed, that sentence must be consecutive unless the defendant shows manifest injustice.

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 14, 2020. Affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

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

Before SCHROEDER, P.J., HILL and GARDNER, JJ.

GARDNER, J.: Rex C. Vaughn pleaded guilty to possession of methamphetamine with intent to distribute—a crime he committed while on felony bond for a previous crime. The district court ruled that special sentencing rules required it to impose the new prison sentence consecutively to Vaughn's previous sentence. Vaughn appeals his sentence, arguing that the district court erred by applying the wrong legal standard because the district court had the discretion to sentence him concurrently. Disagreeing, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2019, Vaughn pleaded guilty to possession of methamphetamine with intent to distribute, in violation of K.S.A. 2019 Supp. 21-5705(a)(l), (d)(3)(C). Because Vaughn committed this crime while on felony bond for a previous felony (forgery and burglary in Saline County), the district court found that Special Rule 10 applied to his new sentence. That special rule required the district court to impose the new sentence consecutively to his previous 586 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn sentence. Vaughn's was not a multiple sentencing case—one that imposes two or more sentences on the same day. Before sentencing, Vaughn moved for a durational departure of 74 months in prison and the State agreed to recommend this sentence. At sentencing, Vaughn's defense counsel acknowledged the special rule but argued that the manifest injustice exception to that rule applied. Vaughn asked the district court to run the sentences concurrently because he was already serving a long time in his other cases. The State countered that a manifest injustice finding was not appropriate under the circumstances.

The district court agreed with the State:

"Regrettably, the Court declines to find manifest injustice that would support the concurrent sentence with the Saline County case. Like I said, this is more than an addiction for you. This enables—this crime enables the addiction of so many others and causes so much heartbreak in our community. So I will not find that there is manifest injustice. I will run the case consecutively."

The district court granted a durational departure, imposing a 74-month prison sentence consecutive to all prior cases, and a 36- month postrelease supervision term. Vaughn appeals.

DID THE DISTRICT COURT ERR IN SENTENCING THE DEFENDANT?

On appeal, Vaughn argues solely that the district court erred by applying the wrong legal standard under K.S.A. 2019 Supp. 21-6606(d) and running his sentence consecutively. Vaughn contends that the district court had the discretion to sentence him concurrently and that the district court erred in finding that it did not. Although Vaughn did not raise this issue below, an exception applies which permits us to address the issue for the first time on appeal—a newly asserted theory that involves only a question of law that arises on proved or admitted facts and determines the case. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). The district court applied K.S.A. 2019 Supp. 21-6606(d) in sentencing Vaughn consecutively. Its terms are mandatory: "Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto, shall VOL. 58 COURT OF APPEALS OF KANSAS 587

State v. Vaughn serve the sentence consecutively to the term or terms under which the person was released." K.S.A. 2019 Supp. 21-6606(d). This statute forms the basis for Special Rule 10. The Legislature provided an exception to this rule in K.S.A. 2019 Supp. 21-6819(a)—a district court shall not impose a mandatory consecutive sentence if manifest injustice will result. But Vaughn does not contend that this manifest injustice exception applies. Although Vaughn argued manifest injustice at his sentencing hearing, the district court found that the circumstances did not warrant such a finding, and Vaughn does not challenge that finding on appeal. Vaughn argues only that the judge had the discretion to sentence him to a concurrent sentence, citing K.S.A. 2019 Supp. 21- 6604(f)(4). Vaughn's argument is threefold. First, he contends that the terms of this statute, which also apply when a defendant commits a crime while on felony bond, make a consecutive sentence permissive, not mandatory. Second, Vaughn argues that K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019 Supp. 21-6606(d) are contradictory because both refer to the imposition of consecutive sentences for offenders on felony bond, yet one uses "may" and the other uses "shall." Third, Vaughn relies on the rule of lenity that applies to conflicting statutes. See State v. Horn, 288 Kan. 690, 693, 206 P.3d 526 (2009) ("Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered."). The rule of lenity requires this court to adopt the interpretation of a criminal statute most favorable to the defendant when presented with two reasonable and sensible interpretations of that statute. State v. Col- lins, 303 Kan. 472, 476, 362 P.3d 1098 (2015). Under this rule, the interpretation most favorable to Vaughn is that a new sentence for felons who commit new crimes while on felony bond may be imposed concurrently. Vaughn also contends that canons of construction dictate that K.S.A. 2019 Supp. 21-6604(f)(4) controls because K.S.A. 2019 Supp. 21-6606(d) applies only when the defendant is receiving two sentences on the same day—Vaughn received only one sentence on his sentencing date. Vaughn argues that "K.S.A. 21- 6606(d) merely grants authority for the court to impose a consecutive 588 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn sentence under K.S.A. 21-6604(f)(4)." As a result, Vaughn argues that the district court had discretion to impose a concurrent sentence without making a manifest injustice finding. The State responds that K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019 Supp. 21-6606(d) do not conflict: "The seemingly contradictory language from K.S.A. 21-6604(f)(4) is in fact not contradictory as it applies only to authorize a prison sentence while deferring to K.S.A. 21-6606 for the mandatory consecutive nature of said sentence." As we explain below, we agree with the State's position.

ANALYSIS

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

"'The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent.' [Citations omitted.]" City of Dodge City v. Webb, 305 Kan. 351, 356, 381 P.3d 464 (2016).

In interpreting K.S.A. 2019 Supp. 21-6604(f)(4), we must examine the statutory scheme considering "various provisions of an act in pari materia with a view to reconciling and bringing the provisions into workable harmony, if possible." State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012); State v. Cole, 238 Kan. 370, Syl. ¶ 1, 710 P.2d 25 (1985). As a result, we do not read this statute in isolation.

The language of the statutes

We begin with the plain language of the statutes. Vaughn asserts K.S.A. 2019 Supp. 21-6604(f)(4) controls, permitting the court to sentence him consecutively or concurrently:

"When a new felony is committed while the offender is on release for a felony pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes An- notated, and amendments thereto, or similar provisions of the laws of another VOL. 58 COURT OF APPEALS OF KANSAS 589

State v. Vaughn jurisdiction, a new sentence may be imposed consecutively pursuant to the provisions of K.S.A. 21-6606, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure." (Empha- sis added.) K.S.A. 2019 Supp. 21-6604(f)(4).

Vaughn alleges that the statute above conflicts with the one below:

"Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto, shall serve the sentence consecutively to the term or terms under which the person was released." (Emphasis added.) K.S.A. 2019 Supp. 21-6606(d).

We first examine K.S.A. 2019 Supp. 21-6604(f)(4). Its introductory clause—the language preceding "a new sentence"—describes the kind of felon to which the statute applies. Vaughn fits within that language, as both parties agree that Vaughn committed a new felony while he was on felony bond. So we set that clause aside. The rest of subsection (f)(4) speaks to what the court may do when that introductory clause is met—"a new sentence may be imposed consecutively pursuant to the provisions of K.S.A. 2019 Supp. 21-6606." K.S.A. 2019 Supp. 21-6604(f)(4). The meaning of the subsection becomes clearer when we read its language in the active, instead of in the passive, voice. So instead of the passive "a new sentence may be imposed," the active voice says, "the court may impose a new sentence." Logically, this means that the court may or may not impose a new prison sentence. It has the discretion to do either. "May," as a helping verb, works as part of the verb "impose," not with the adverb "consecutively." When construing a statute, we apply the rules of English grammar. We move on. If the court opts to impose a new prison sentence, how does it do that? It does so "consecutively pursuant to the provisions of K.S.A. 2019 Supp. 21-6606." K.S.A. 2019 Supp. 21-6604(f)(4). Consecutively is an adverb, modifying the verb "impose," or the verb phrase "may impose." Read together, this clause restricts the earlier portion of the sentence: "a new sentence may be imposed consecutively." The rest of the subsection is writ- 590 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn ten in the active voice. It states, "the court may sentence the offender to imprisonment for the new conviction" even if the new crime is presumptive nonprison. K.S.A. 2019 Supp. 21- 6604(f)(4). That language underscores that the focus of K.S.A. 2019 Supp. 21-6604(f)(4) is on what the court is authorized to do. This is consistent with the statute's heading, "Authorized disposi- tions." We then look to "the provisions of K.S.A. 21-6606," as K.S.A. 2019 Supp. 21-6604(f)(4) requires that "a new sentence may be imposed consecutively pursuant to the provisions of K.S.A. 21- 6606." The focus of the language in K.S.A. 21-6606 is not on what a court is authorized to do. Rather, the focus is on what sentence the recidivistic felon must serve. This statute has multiple subsections, one of which directly applies to Vaughn. But we must first briefly address four other subsections, as they paint the full pic- ture. K.S.A. 2019 Supp. 21-6606(a) addresses multiple sentences—when a court imposes separate sentences of imprisonment on the same date for a defendant's different crimes. Such sentences "shall run concurrently or consecutively as the court directs." K.S.A. 2019 Supp. 21-6606(a). If the court fails to direct, and the record is silent as to how two or more sentences imposed at the same time shall be served, they shall be served concurrently, "except as otherwise provided in subsections (c), (d) and (e)." K.S.A. 2019 Supp. 21-6606(a). Subsection (a) does not apply here because Vaughn did not receive multiple sentences—his sentences were on different dates. And, the record is not silent as to how Vaughn was to serve his sentence—the district court stated it was consecutive. Nor does subsection (b) apply. Subsection (b) provides that persons convicted and sentenced for a crime committed while on probation, assignment to a community correctional services program, parole, or conditional release for a misdemeanor shall serve the sentence concurrently or consecutively, as the court directs. K.S.A. 2019 Supp. 21-6606(b). Vaughn was on bond for a felony. The next three subsections of K.S.A. 2019 Supp. 21-6606 require consecutive sentences for certain repeat felons, including Vaughn:

VOL. 58 COURT OF APPEALS OF KANSAS 591

State v. Vaughn

"(c) Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release. "(d) Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto, shall serve the sentence consecutively to the term or terms under which the person was released. "(e)(1) Any person who is convicted and sentenced for a crime committed while such person is incarcerated and serving a sentence for a felony in any place of incarceration shall serve the sentence consecutively to the term or terms under which the person was incarcerated."

These three sections show "a clear legislative intent to cover the waterfront and to require consecutive sentences where a defendant commits a felony while released on bond in a prior felony case, whether at the beginning of the prosecution prior to trial or at the end of the trial or after the defendant has been sentenced or after defendant is placed on probation or parole or conditional release or while incarcerated." State v. Reed, 237 Kan. 685, 688, 703 P.2d 756 (1985) (examining the predecessor statute, K.S.A. 1984 Supp. 21-4608[3], [4], and [5]). Subsection (d) applies to Vaughn, independently of subsection (a), which does not apply here. It requires that "[a]ny person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kan- sas Statutes Annotated, and amendments thereto, shall serve the sentence consecutively to the term or terms under which the person was released." K.S.A. 2019 Supp. 21-6606(d). Vaughn was convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Stat- utes Annotated. So, for that new crime, he "shall serve the sentence consecutively." K.S.A. 2019 Supp. 21-6606(d). The court has no discretion to sentence Vaughn concurrently. Vaughn argues that subsection (d) relates only to multiple sentences and is a subset of subsection (a). But he concedes that position is contrary to our cases which examined the predecessor statute to K.S.A. 2019 Supp. 21-6606—K.S.A. 21-4608. See State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997), disapproved of on other grounds by State v. Bolin, 266 Kan. 18, Syl. 592 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn

¶ 3, 968 P.2d 1104 (1998); State v. LaGrange, 21 Kan. App. 2d 477, 901 P.2d 44 (1995), abrogated by State v. Rodriguez, 305 Kan. 1139, 390 P.3d 903 (2017); State v. Owens, 19 Kan. App. 2d 773, 875 P.2d 1007 (1994). He admits our Supreme Court has rejected that reasoning as well, citing State v. Edwards, 252 Kan. 860, 870, 852 P.2d 98 (1993) (finding subsection [1] is "a specific statute applied when all involved sentences occur, as here, on the same date and take precedence over subsection [3] of [K.S.A. 1992 Supp. 21-4608]"). Vaughn argues that these cases were wrongly decided, yet we have no ability to overturn a Supreme Court case, when, as here, we have no indication it is changing its position. State v. Rodriguez, 305 Kan. 1139, 1144390 P.3d 903 (2017) (Kansas courts are "duty bound to follow Kansas Supreme Court precedent absent indication Supreme Court is departing from previous position."). Vaughn asserts that subsection (a), relating to multiple sentences, restricts the subsections that follow, including subsection (d). But the plain language of the statute is not structured that way—each subsection from (a) through (d) addresses a different factual situation. And subsection (a), relating to multiple sentences, expressly defers to subsection (d) in its exception. That exception states if the "record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as otherwise provided in subsections (c), (d) and (e)." (Emphasis added.) K.S.A. 2019 Supp. 21-6606(d). Subsections (c), (d), and (e) each require consecutive sentences. So even if a defendant commits multiple new felonies while on felony bond and the court imposes multiple sentences yet fails to state whether those sentences are concurrent or consecutive, subsection (d) requires the defendant to serve those sentences consecutively, despite subsection (a)'s general rule that when the record is silent two or more sentences imposed at the same time shall be served concurrently. Vaughn did not have two or more sentences imposed at the same time, so subsection (a) does not apply to him. Subsection (d) does. These two statutes, K.S.A. 2019 Supp. 21-6604(f)(4) and K.S.A. 2019 Supp. 21-6606(d), do not conflict. Rather, they are VOL. 58 COURT OF APPEALS OF KANSAS 593

State v. Vaughn harmonious. The Legislature intended for them to be read together, as K.S.A. 2019 Supp. 21-6604(f)(4)'s reference to "the provisions of K.S.A. 2019 Supp. 21-6606" confirms. This natural reading of the statutes makes sense. A district court which chooses to impose a new sentence on a defendant such as Vaughn must do so "consecutively pursuant to the provisions of K.S.A. 2019 Supp. 21-6606." K.S.A. 2019 Supp. 21-6604(f)(4). It has no discretion to do otherwise. See Reed, 237 Kan. at 687-88 (finding mandatory consecutive sentences were required under the predecessor statute to K.S.A. 2019 Supp. 21-6606[d]—K.S.A. 1984 Supp. 21- 4608[4]—because Reed committed two felonies after being released on felony bond pending trial in the first case). In contrast, Vaughn's interpretation of K.S.A. 2019 Supp. 21- 6604(f)(4) makes no sense. Vaughn interprets "may" as modifying "consecutively." He thus reads the operative language in this statute to mean: "a new sentence may be imposed consecutively or concurrently pursuant to the provisions of K.S.A. 2019 Supp. 21- 6606." But that adds language to the subsection, which says nothing about concurrent sentences. See State v. Ardry, 295 Kan. 733, 737, 286 P.3d 207 (2012) (it is not for an appellate court to add to or delete vital language from a statute). And a concurrent sentence for a defendant like Vaughn (who is sentenced for a felony on one date and then commits another felony while on felony bond) is impossible "pursuant to the provisions of K.S.A. 2019 Supp. 21- 6606." (Emphasis added.) K.S.A. 2019 Supp. 21-6604(f)(4). For that kind of repeat felon, the only applicable subsection in K.S.A. 2019 Supp. 21-6606 is (d), which mandates that the defendant "shall serve the sentence consecutively." So no concurrent sentence could be imposed pursuant to any provision of K.S.A. 2019 Supp. 21-6606 for Vaughn or similarly situated felons. Our interpretation, unlike Vaughn's, meets our duty to "construe a statute to avoid unreasonable or absurd results." State v. Arnett, 307 Kan. 648, 654, 413 P.3d 787 (2018).

The legislative history

Vaughn argues that certain testimony during legislative hearings in 1999 about the amendment to K.S.A. 21-4603d(f) "leaves no doubt that the Legislature intended district court judges to have discretion to run sentences either concurrently or consecutively 594 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn when a new offense is committed while on felony bond." He cites testimony by Judge (now Chief Justice) Luckert, the Kansas At- torney General, and the Kansas District Judges' Association (KDJA). Individual testimony during legislative sessions is rarely conclusive as to the Legislature's collective intent. See, e.g., State ex rel. SRS v. Bohrer, 286 Kan. 898, 911, 189 P.3d 1157 (2008) (finding contradictory comments tell us "very little about what the legislature actually believed when it enacted the statutes"). At any rate, we review the documents Vaughn has attached to his brief. Although we do not agree that the statute's language is ambiguous, neither is it a model of clarity. So we consider legislative history. See Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019). It shows us that the issue before the Legislature was the court's power to sentence felons like Vaughn to prison instead of presumptive probation and had nothing to do with concurrent versus consecutive sentences. Judge Luckert's testimony in support of the bill stated only that "[i]t would allow the sentencing judge to impose a sentence [to] be served consecutively for a new crime that was committed while he was on bond for the original crime." Nothing in her statement suggested that the bill would give the sentencing judge discretion to sentence such a defendant concurrently. Similarly, Attorney General Stovall's letter submitted in support of the bill contained no language favorable to Vaughn's position. Instead, it stated that the bill

"will allow a judge the discretion to impose imprisonment on a criminal defendant who commits a new felony while on bond for a felony offense. . . . This bill simply provides the court with discretion to impose a sentence of imprisonment on a defendant who commits a new felony while on bond for committing a felony, with the result that the sentence is not considered a departure. . . . . "This bill merely grants the court the discretion to impose a prison sentence without it constituting a departure in a clearly essential situation."

The letter did not suggest that the district court would have any discretion to impose a concurrent sentence on such a defendant. Neither did the testimony of the KDJA. It urged support of the bill, stating, "[t]he amendment would allow a sentencing judge to VOL. 58 COURT OF APPEALS OF KANSAS 595

State v. Vaughn

. . . sentence a defendant to prison to serve a sentence consecutive to another sentence if an offender commits a felony while released on bond before trial or sentencing in another case." The KDJA referred to the use of the word "may" in concluding:

"Kansas district judges have experienced cases where the judge felt that a prison sanction was appropriate when the defendant committed a new crime while on bond awaiting sentencing in another case. A defendant's conduct while on bond is often a good indicator of the defendant's ability to abide by the conditions of probation. However, there are also circumstances where the nonprison sanction remains inappropriate. Thus, the Kansas District judges urge your support for the language which states that a defendant may be sentenced consecutively for a new crime committed while on bond. The Kansas District Judges also support the amendment which would allow the imposition of a prison sanction even if the crime might otherwise be presumptive probation." This language explains that the "may" gives the sentencing court the option to sentence a defendant in Vaughn's position to a prison or a nonprison sanction, because "there are also circumstances where the nonprison sanction remains inappropriate." Thus, the KDJA's testimony cuts against Vaughn's contrary view that the word "may" permits a court to sentence him concurrently under this subsection of the statute. The Legislature enacted K.S.A. 21-6604(f)(4), not to give courts discretion as to whether to sentence repeat felons like Vaughn concurrently or consecutively, but to give courts the power to sentence such defendants to imprisonment even when the new crime of conviction otherwise presumes a nonprison sentence. That is the thrust of the testimony above. And that is the issue that sparked enactment of this subsection, as we explain below. When enacted in 1993, K.S.A. 21-4603d, the precursor to K.S.A. 21-6604(f), did not include language about defendants such as Vaughn, who committed a new felony while on felony bond. Rather, it stated:

"When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or postrelease supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new 596 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure." K.S.A. 1993 Supp. 21-4603d(a); see L. 1993, ch. 165, § 1.

The Kansas Supreme Court held that this language excluded defendants such as Vaughn, who committed a new felony while on felony bond. State v. Arculeo, 261 Kan. 286, 293, 933 P.2d 122 (1997). Arculeo committed a new felony while released on bond pending sentence in a prior felony case, as did Vaughn. Although the KSGA provided a presumptive nonprison sentence for his new crime, the district court sentenced him to prison. The district court found that Arculeo was on "conditional release" when he committed the new crime, fitting him within that term in the statute above. The Kansas Supreme Court reversed, finding that K.S.A. 21- 4603d did not include persons released for a felony under article 28, chapter 22, and inviting the Legislature to amend the statute if it desired that result:

"The present statute we now consider, K.S.A. 21-4603d, does not contain the language relied on in Reed to cover a defendant released on bond. Notably absent from K.S.A. 21-4603d is the language contained in K.S.A. 21-4608(d), which specifically refers to article 28 of Chapter 22 of the Kansas Statutes An- notated and specifically covers a case like the one in this appeal where the new felony is committed while the defendant is on bond awaiting sentences in prior felonies. Had the legislature wanted an accused charged with a new crime while released on bond for a prior felony to be covered under the provisions of K.S.A. 21-4603d authorizing imposition of a prison sentence when the new crime of conviction otherwise presumes a nonprison sentence, it could have added the language contained in K.S.A. 21-4608(d). "We hold that a defendant who at the time of sentencing for a new felony had been released on bond pending sentence in a prior felony case, is not on conditional release as that term is used in K.S.A. 21-4603d. We further hold that the statutory provision in K.S.A. 21-4603d authorizing a court to sentence an offender to imprisonment for a new conviction even when the new crime of conviction otherwise presumes a nonprison sentence, does not apply to the defendant in this case, who committed a new felony while on bond pending sentence in a prior felony case." (Emphasis added.) Arculeo, 261 Kan. at 293.

So a district court lacked the authority to sentence repeat felons such as Vaughn to imprisonment for a new conviction presumed to be a nonprison sentence, even though the sentencing statute ("the language contained in K.S.A. 21-4608[d]," now K.S.A. 21-6606[d]) then, as VOL. 58 COURT OF APPEALS OF KANSAS 597

State v. Vaughn now, required a felon released on bond who committed a new felony to serve a consecutive sentence. See 261 Kan. at 293. The Legislature responded to Arculeo by doing exactly what the Supreme Court invited it to do, granting courts that power. It amended K.S.A. 21-4603d in 1999 to add language specific to felons such as Arculeo and Vaughn who commit a new felony while released on bond for a prior felony:

"When a new felony is committed while the offender is on release for a felony pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, a new sentence may be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608 and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure." K.S.A. 1999 Supp. 21-4603d(a)(11); see L. 1999, ch. 164, § 13.

The Legislature thus gave the district courts the power to impose a new sentence of imprisonment for felons such as Vaughn, "pursuant to the consecutive sentencing requirements of K.S.A. 21-4608" (now K.S.A. 2019 Supp. 21-6606), even when the new crime of conviction otherwise presumed a nonprison sentence. That language changed stylisti- cally in 2013 to its current language, "a new sentence may be imposed consecutively pursuant to the provisions of K.S.A. 21-6606." K.S.A. 2013 Supp. 21-6604(f)(4). Nothing the Legislature did related to the concurrent/consecutive issue, as Vaughn alleges. The lens through which Vaughn reads K.S.A. 2019 Supp. 21- 6604(f)(4) presumes that the Legislature meant to address the concurrent/consecutive issue by using the word "may." But that presumption finds no support in legislative history and invites a misreading of the statute. The issue this statute addresses is whether the court has the authority to sentence offenders such as Vaughn to prison for a new felony presumed to be a nonprison sentence. This statute gives the court the ability to impose a new prison sentence for such felons, but only consecutively, in accordance with the requirements of K.S.A. 2019 Supp. 21-6606(d). A district court sentencing a defendant for a new felony committed while on felony bond under that subsection may impose a nonprison sanction or may impose a prison sanction even though the new crime of conviction otherwise presumes a nonprison sentence. K.S.A. 2019 Supp. 21-6604(f)(4). In either event, the sentence must be 598 COURT OF APPEALS OF KANSAS VOL. 58

State v. Vaughn consecutive, unless the defendant shows manifest injustice. K.S.A. 2019 Supp. 21-6606(d); K.S.A. 2019 Supp. 21-6819(a). We find it unnecessary to address the alternative analysis raised by the parties and addressed in our other cases which have decided this issue adversely to Vaughn's position. See, e.g., State v. Al-Bureni, No. 119,274, 2019 WL 985979, at * 4 (Kan. App.) (unpublished opinion) (finding no conflict between these statutes because the language in K.S.A. 2017 Supp. 21-6604[f][4] is broader than in K.S.A. 2017 Supp. 21-6606[d] and the more specific statute controls), rev. denied 310 Kan. 1063 (2019). The district court correctly ruled that because Vaughn failed to show manifest injustice, Vaughn's sentence must be consecutive.

Error in Journal Entry

Finally, as the State points out, the journal entry erroneously states that the district court applied Special Rule 9: "Crime Committed While Incarcerated, on Probation, Parole, Conditional Release, or Postrelease Supervision for a Felony." But the sentencing transcript reflects that the district court applied Special Rule 10 because Vaughn was on felony bond during the commission of the crime. Generally, "where the sentence announced from the bench differs from the sentence later described in the journal entry, the orally pronounced sentence controls." Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007). The State has noted its intent to prepare a nunc pro tunc journal entry to correctly reference Special Rule 10 instead of Special Rule 9, and we trust it will do so.

Affirmed. VOL. 58 COURT OF APPEALS OF KANSAS 599

State v. Brown

___

No. 119,460

STATE OF KANSAS, Appellee, v. STEVEN LEE BROWN, Appellant.

___

SYLLABUS BY THE COURT

1. EVIDENCE—Prior Crimes Evidence—Purpose. K.S.A. 2019 Supp. 60- 455(a) and (b) allow the State to admit prior crimes evidence for the purposes of showing some material fact including, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. But this is not an exclusive list. Evidence of a defendant's prior crimes may be admitted to show why a victim delayed reporting a defendant's sexual abuse.

2. SAME—Admissibility of Prior Crimes Evidence—Three-Part Test—Ap- pellate Review. In analyzing the admissibility of K.S.A. 60-455 evidence, the district court uses a three-part test while appellate courts use the following standards of review: First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. Third, if the fact to be proven is material and the evidence is relevant to prove a disputed material fact, the district court must determine whether the risk of undue a prejudice to the defendant substantially outweighs the probative value of the evidence. The appellate court reviews this determination for abuse of discretion.

3. SAME—Probative Value of Other Crimes Evidence—Considerations. In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence.

4. SAME—Prejudicial Effect of Other Crimes Evidence—Considerations. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct. 600 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

5. SAME—Admission of Prior Crimes Evidence—Three Types of Resulting Prejudice. There are at least three types of prejudice resulting from the admission of prior crimes evidence: First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he or she committed this one. Second, the jury might conclude that the defendant deserves punishment because he or she is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Third, the jury might conclude that because the defendant is a criminal, the evidence put in on his or her behalf should not be believed.

6. SAME—Erroneous Admission of Prior Crimes Evidence—Harmless Error Standard—Appellate Review. The erroneous admission of K.S.A. 60-455 evidence is subject to review for harmless error under K.S.A. 2019 Supp. 60-261. Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is grounds for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.

7. SAME—Erroneous Admission of Prior Crimes Evidence—Burden on Ben- efitting Party. Where an error in the admission of K.S.A. 60-455 evidence occurs, the party benefitting from the error must persuade the court that there is no reasonable probability that the error affected the trial's outcome in light of the entire record for it to be deemed harmless.

8. CRIMINAL LAW—Trial—Joinder or Consolidation Issues—Three-Step Analysis—Appellate Review. In analyzing joinder or consolidation issues, the district court and appellate courts use a three-step analysis with the following standards of review: On the first step, the court determines whether K.S.A. 22-3202 permits joinder. Under that statute, multiple complaints against a defendant may be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of multiple crimes in a single complaint: (1) the charges must be of the "same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Whether one of these conditions is satisfied is a fact- specific inquiry, and the appellate court will review the district court's factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. On the second step, because K.S.A. 22-3202(1) provides that charges may be joined, a district court retains discretion to deny a joinder request even if a statutory condition is met. We review this decision for an abuse of discretion. On the third step, if an error occurred in the preceding steps, courts determine whether the error resulted in prejudice, i.e., whether the error affected a party's substantial rights. On appeal from a denial of a motion to sever, the party benefitting VOL. 58 COURT OF APPEALS OF KANSAS 601

State v. Brown

from the error is responsible for demonstrating there is no reasonable probability the error affected the trial's outcome considering the entire record.

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed August 21, 2020. Reversed and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.

BUSER, J.: Steven Lee Brown appeals his convictions for two counts of rape, one count of attempted rape, one count of aggravated indecent liberties with a child, and one count of intimidation of a witness. Brown raises four claims of error. First, he alleges the district court abused its discretion by admitting in evidence two incidents of domestic violence under K.S.A. 60-455. Second, Brown asserts the district court erred in consolidating for trial the information alleging sex crimes with a separate information alleging intimidation of witnesses. Third, he contends the district court erred by denying three motions for mistrial. Fourth, Brown claims the multiple trial errors, considered together, constitute cumulative error requiring reversal of the convictions. Upon our review, we hold that individually and collectively the admission of K.S.A. 60-455 evidence and consolidation of the informations for trial substantially prejudiced Brown and denied him a fair trial. Accordingly, we reverse the convictions and remand with directions to sever the two cases and for further proceedings in separate trials.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 2015, Brown was arrested and later charged in an amended information with three counts of rape in violation of K.S.A. 2014 Supp. 21-5503(a)(3) and (b)(2) and one count of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 2014 Supp. 21-5506(b)(2)(A). The State alleged these offenses were perpetrated on Brown's stepdaughter, K.N., during a seven-year period. Depending on the particular offense, K.N. (whose year of birth is 1999), was 9 years to 16 years of age when she was sexually assaulted. 602 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

While Brown was incarcerated awaiting trial on the sexual assault charges, he wrote a letter to K.N.'s mother and his longtime companion, A.N. As a result, the State filed another information charging Brown with aggravated intimidation of a victim (K.N.), in violation of K.S.A. 2016 Supp. 21-5909(a)(1) and (b)(4), and one count of intimidation of a witness (A.N.), in violation of K.S.A. 2016 Supp. 21-5909(a)(1). Over Brown's objection, the two informations were consolidated for trial. The jury trial began on January 29, 2018. K.N. testified that Brown came into her life in 2008 when she was eight years old and he began dating her mother, A.N. Later, Brown moved into the home of A.N. and K.N. At first, K.N. and Brown had a close relationship as she considered him a father figure. When K.N. was nine years old, Brown began to sexually touch her. About that time, A.N. and K.N.'s aunt, M.N. noticed that K.N.'s demeanor towards Brown changed—K.N. suddenly wanted nothing to do with Brown. K.N. testified the sexual abuse was ongoing over the years, beginning in February 2009. The abuse happened frequently in the beginning—sometimes twice a week—but less and less over time. In the beginning, it would happen at night and always in K.N.'s bedroom. On one occasion, K.N. explained that she awoke in her bedroom in the middle of the night as Brown put his finger inside her vagina. Brown then moved K.N.'s hand to his erect penis and made her grip it. After a while, Brown left her bedroom. K.N. recalled that after the assault her vagina burned, and the next day she noticed spots of blood on her underwear. On another occasion, when K.N. was 10 years old, she remembered Brown picking her up, carrying her to the bed and, with the covers over them, unbuttoning her pants, rubbing her vagina, and inserting his finger inside. Immediately thereafter, K.N. went to the bathroom. According to K.N., Brown followed her into the bathroom, put his hands up her shirt, and squeezed her breasts while pretending to hug her. On a third occasion, K.N. was lying in bed and Brown came and laid down beside her. Brown moved his hand from K.N.'s breast to undo her pants. When Brown's hand reached her pubic VOL. 58 COURT OF APPEALS OF KANSAS 603

State v. Brown area, K.N. started to cry. She told Brown to stop. K.N. testified that, on this occasion, Brown did not actually penetrate her vagina. After the encounter, Brown said in a threatening way that she "better not tell [her] grandma or [her] mom about what had happened." K.N. testified that when she was 12 years old, she was lying on a bed in the living room when Brown cuddled up next to her and attempted to unbutton her pants. K.N. testified that she "kind of freaked out and said no and [she] ran to [her] bedroom and locked the door." According to K.N, when she was 14 or 15 years old, she awoke on 10 to 15 times with Brown either in her bed or on the couch with Brown's hand under her shirt and bra as he grabbed her breasts. The last incident occurred when K.N. was 16 years old. On that occasion, K.N. again awakened to find Brown's arms around her. According to K.N., When she tried to force Brown's hand off her, he pretended that he was asleep and said, "[A.N.], [A.N.]" Brown quickly got up and left the room. K.N. testified that she did not tell her mother about the sexual assaults because she was "scared to say something. And I didn't really understand what was going on I guess." However, when she was 14 years old, K.N. told some friends about the sexual assaults, including J.M. J.M. testified that K.N. told him her stepfather "fin- gered" her and groped her. When she was 16 years old, K.N. con- fided to her father that Brown molested her when she was younger but she did not want him to tell A.N. because K.N. "had it under control, [she] was safe, everything was fine." When K.N. was 15 years old, A.N. accompanied her to counseling sessions because K.N. had thoughts of suicide. During these joint sessions, K.N. did not tell Angela O'Brien, a crisis therapist with Central Kansas Mental Health, or her mother about the sexual abuse. After K.N. reported the sexual abuse to law enforcement authorities, she also told O'Brien. O'Brien testified that K.N. said the sexual abuse lasted for a five-year period, and she appeared relieved after her disclosure. According to the therapist, K.N. felt guilty about not disclosing it earlier. In November 2015, when K.N. was 16 years old, she was watching a television program about molestation with her grandmother, G.S. At that time, K.N. revealed that she had been molested by Brown. G.S. exclaimed, "I knew it, I knew it." G.S. told 604 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

K.N. that she needed to tell her mother, but K.N. resisted because she believed it would hurt her. G.S. told A.N. the next day, and a police report was filed. Brown testified in his own defense at trial. He stated that he was "shocked and surprised" when he first learned of K.N.'s allegations. Brown denied committing any of the sexual assaults. He claimed it was possible that he was in the same bed or on the couch with K.N., but "just as family, nothing like sexual like they were describing." Brown's trial testimony denying any wrongdoing was similar to statements he made to Detective Amanda Londono who interviewed him as part of the police investigation. Regarding the intimidation of a witness charges, Brown testified that the letter he mailed to A.N. was never intended for K.N. Brown stated he wrote the letter because he did not have a chance to speak with A.N. about the allegations or tell her that he did not sexually abuse K.N. Brown testified that his comments about the allegations in the letter were an attempt to understand the situation. After a five-day trial, the jury found Brown guilty of two counts of rape, one count of attempted rape, one count of aggravated indecent liberties with a child, and one count of intimidation of a witness (A.N.). Brown was acquitted of one count of aggravated intimidation of a victim (K.N.). Brown was sentenced to a controlling prison term of life imprisonment with no parole eligi- bility for 1306 months plus 162 months. Brown filed a timely notice of appeal.

ADMISSION IN EVIDENCE OF PRIOR ACTS OF DOMESTIC VIOLENCE

On appeal, Brown claims the district court erred in admitting K.S.A. 60-455 prior crimes evidence. The evidence showed that in 2010 and 2011, following arguments with A.N., Brown became angry and damaged property within the home and vehicles parked outside. While the evidence was admitted to prove one reason K.N. delayed reporting her sexual abuse—fear of Brown's anger, violence, and unpredictability—Brown contends that "any limited probative value was far outweighed by its prejudicial effect." Brown also asserts this error was not harmless but reversible. VOL. 58 COURT OF APPEALS OF KANSAS 605

State v. Brown

The State counters, "[t]he court concluded that the evidence that the alleged victim was scared to report was relevant to the basis for her fright, and was material. . . . The court held the prejudicial effect of the domestic violence incidents did not outweigh its probative value in this type of case." Analysis of this issue requires a thorough summary of the evidence presented by the State to prove the two prior crimes and the district court's weighing of the probative value of that evidence in relation to its potential to prejudice Brown's right to a fair trial.

Motion and Hearing Regarding K.S.A. 60-455 Evidence

The State filed a pretrial motion under K.S.A. 60-455 seeking to admit evidence of Brown's 2010 and 2011 property damage crimes involving A.N. The defense filed a motion in limine to prevent the admission of the evidence. In the September 19, 2010 incident, Brown and A.N. had an argument over "'dissatisfaction with their relationship.'" According to the State, during the argument, Brown significantly damaged the interior of the home. A.N. left the home and called the police, although she said that she later declined to press charges. After the incident, K.N., who was 10 years old, was interviewed by Officer Greg Jones. According to the State's brief filed in support of the motion:

"She said that she was in the back bedroom and did not see anything but she heard what happened. Off. Jones asked her questions about the defendant's temper, how he treated her mother and whether she had any concerns about her own safety. She continued to state that she did not see anything and that she was not afraid to remain in the home. She said that Steven [Brown] sometimes treats her mother poorly, but he has never hit or pushed her. She said that Steven was not mean to her."

Regarding the August 7, 2011 incident, the State asserted that Brown and A.N. had "an argument over their relationship and she was trying to leave him." Brown "'went crazy'" and began breaking out the windows and denting the exteriors of two motor vehicles used by A.N. Then A.N. fled the scene and called police. Ac- cording to the State, during this incident K.N. was inside the residence and "was able to hear all of the damage occurring outside. She was not interviewed. She was 11 years old at the time." 606 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

In the K.S.A. 60-455 motion, the State provided numerous reasons why K.N. delayed disclosure of the sexual abuse. Accord- ing to the State:

"K.N. did not report the sexual abuse earlier because:

o "She did not want to take a father away from her younger siblings. She had grown up without the presence of her biological father. She did not want to hurt her family. o "She was afraid of what the defendant might do if she told. o "She did not want to say anything to upset her mother. o "She was scared to tell. o "[Brown] had been in and out of jail so many times, she hoped he would eventually be out of the home for good. o "The abuse had tapered off when she was about 12 years old. However, recently, he had not touched her vagina, but she would wake up with the defendant in her bed with his arms around her and she was afraid the touching would start again. o "The defendant told her not to tell her mother or her grandmother."

The State asserted: "The episodes of domestic violence with her mother are relevant to her fear. K.N. was a witness to domestic violence. These cases are directly relevant as to why she did not tell: she was afraid of what [Brown] could do to her mother and their property." In the hearing on the State's motion, defense counsel countered:

"Your Honor, this evidence is highly prejudicial against my client. Focusing on the domestic violence issues, first of all this is a case involving aggravated indecent liberties with a child and rape; it does not focus on domestic violence. And I believe that from what I've read in the preliminary hearing transcript, the child has never raised that she was even physically abused by my client, that she was ever threatened physically by him, that he ever slapped her, manhandled her, or anything in that regard. The incidents that the State wants to bring up are incidents the child did not witness, the child had heard, the child had heard furniture being broken had heard the windows in the vehicle being broken, was aware these things were going on. . . . Those seem very remote for the child. They're going to paint my client as a complete jerk to the jury. That's about the only way I can phrase that. The jury hears about evidence that he was in a . . . domestic VOL. 58 COURT OF APPEALS OF KANSAS 607

State v. Brown relationship with the child's mother that was very full of chaos, basically, and that there was that type of physical violence. Even though it wasn't directed at [A.N.], it was directed at furniture and directed at the car. We can state to the Court that the value of that evidence is—the prejudice that's going to be . . . given by the jury toward Mr. Brown is going to outweigh any value of that. The State's theory is that well there's all this domestic violence, that's why she was afraid to report, I mean that's just a theory."

In granting the State's motion, the district court found the K.S.A. 60-455 evidence to be material and relevant as to why K.N. delayed reporting her sexual abuse. Moreover, the district court concluded, "any prejudicial effect of the domestic violence incident, that does not outweigh the probative value that took place in this type of case." The district court indicated it would issue a limiting instruction at trial.

K.S.A. 60-455 Evidence Admitted at Trial

Brown renewed his objection to admission of the prior crimes evidence at trial, and the district court granted defense counsel a continuing objection to the challenged evidence. Brown also objected to admission of the evidence in posttrial motions. At trial, numerous witnesses testified to one or both prior crimes. Greg Jones, the police officer who responded to the 2010 incident testified about responding to the scene, observing damage, interviewing A.N. and K.N., and taking photographs. Seven photographs depicting property damage were admitted in evidence. Officer Jones testified to damaged property shown on each individual photograph. On cross-examination of Officer Jones, the following collo- quy occurred:

"Q. And you asked [K.N.] a few specific questions, didn't you? "A. I asked her several questions in regards to Steven's temper, the way he treats their mother, and any concerns for her own safety. "Q. And she told you that she felt like Steven maybe didn't treat her mom the best at times but had never hit or pushed her? "A. Correct. "Q. She said that Steven wasn't mean to her? "A. That's what I have in my report. "Q. Okay. Did that indicate Steven wasn't mean to mother, or Steven wasn't mean to [K.N.]? "A. I'm not sure. . . . . 608 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

"Q. You asked her if she felt safe staying at the house? "A. Correct. "Q. And she told you what? "A. That she did. "Q. And she specifically said she wasn't afraid to stay there? "A. I have that she said she was not afraid to stay at the house. "Q. So you gave her at that point every opportunity to tell you if she was concerned about being there, concerned about Steven for any reason, correct? "A. Correct."

A.N. also testified about the 2010 incident. She described the argument and the property that Brown had damaged and her call to the police. She believed K.N. was asleep in a back bedroom during the incident. After Brown's arrest, A.N. testified that K.N. told her she was afraid and scared. A.N. declined to press charges, and Brown continued to live at the residence. A.N. also testified about the 2011 incident. According to her, after an argument with Brown wherein she told him to leave the residence—which he did—she went to bed only to be awakened in the middle of the night by Brown who wanted to continue the argument. At the time, K.N. was in her bedroom. Brown ordered A.N. to leave the home and as she headed for the door, he grabbed her purse and threw it at the television, breaking it. When A.N. entered her car, Brown threw bricks at it breaking the windows. When A.N. attempted to leave in another car, Brown threw bricks at that vehicle as well, breaking the windows and damaging the exterior. A.N. fled on foot, called the police, and Brown was arrested. According to A.N., she spoke with K.N. after the incident and K.N. was scared and afraid. The district court admitted a one- page handwritten statement by A.N. about the incident which she provided to the Salina Police Department. The grandmother testified briefly to her knowledge about the 2010 and 2011 incidents. Officer Kyle Tonniges testified about his investigation of the 2011 incident. The officer described the damage to the two cars. Officer Tonniges also testified about 18 individual photographs admitted in evidence that showed the damaged property. The officer interviewed Brown, who smelled of alcohol, at the scene. Brown told Officer Tonniges that he was upset with A.N. and asked her to move out of the house. Brown was arrested at the VOL. 58 COURT OF APPEALS OF KANSAS 609

State v. Brown scene. K.N. was not interviewed about her knowledge of the incident. K.N. testified to both the 2010 and 2011 incidents. Regarding the 2010 incident she recalled that she was 10 years old and was in her room at night watching television when she heard yelling and things breaking. She observed damaged items inside the house and recalled talking to a police officer. According to K.N. she remembered telling the officer she was okay. K.N. testified that she was worried for her mom and she felt that Brown "was just a violent person." Regarding the 2011 incident, K.N. testified that she was 11 years old and watching television in her room late at night when she heard a commotion involving Brown and A.N. She also heard the noise of glass breaking outside their home and police sirens. K.N. later observed that the family's two cars had been damaged. According to K.N., she, her younger sister, and her mother stayed with a friend for several months thereafter. At trial, K.N. testified to several reasons why, over the years, she did not report Brown's sexual abuse. As detailed by the State in their appellate brief:

"[K.N.] testified as to the reasons for her delayed reporting. When asked why she didn't tell her mother or anyone, she said: 'I was just scared to say something. And I didn't really understand what was going on I guess.' K.N. was asked why K.N. disclosed in November of 2015. She responded: 'There were multiple reasons, and before that I did not want to come out about it because I did not think that it would ever, I never wanted anybody to find out.' She was asked why she didn't tell when she was little and she testified: 'Well I was scared of what he might do. I was scared that my mom wouldn't believe me.' She also testified she was worried about her sisters and brother. K.N. disclosed first to her grandmother. Her mother was still living with the defendant at the time of the disclosure."

K.N. testified that immediately after the police interviewed her, she explained to her aunt, M.N., the reasons why she delayed in disclosing the sexual assaults:

"She said that she never told because she felt bad for, one, that when she would look at her baby sister she didn't want to take her dad away from her because she knew what it was like to not have her dad around. And then she also said that she didn't tell because she was afraid of not being believed, and that it would get worse, and she knew that how Steven could be, because she would see how he was with [A.N.]." 610 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

In his defense at trial, Brown admitted to the 2010 and 2011 property damage crimes. According to Brown, he pled guilty to both charges arising from the incidents. The district court gave the jury a limiting instruction regarding the K.S.A. 60-455 evidence. It read:

"Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. If considered by you at all, it may be considered solely as evidence relating to delayed reporting by [K.N.] and for no other purpose."

Standards of Review and Brief Summary of K.S.A. 60-455 Law

In analyzing the admissibility of K.S.A. 60-455 evidence, the district court uses the three-part test enunciated in State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), as modified by State v. Campbell, 308 Kan. 763, 423 P.3d 539 (2018), while appellate courts use differing standards of review:

"'First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. "'Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.'" State v. Haygood, 308 Kan. 1387, 1392, 430 P.3d 11 (2018) (quoting State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 [2014]).

Of particular importance to the case on appeal, the third part of the test used by the district court and the corresponding standard of appellate review provides that if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, the district court must determine whether the risk of undue prejudice to the defendant substantially outweighs the probative value of the evidence. The appellate court reviews this determination for abuse of discretion. State v. Thurber, 308 Kan. 140, 202, 420 P.3d 389 (2018); see also State v. Satchell, 311 Kan. ___, 466 P.3d 459, 464-65 (2020) (clarifying that despite prior short- hand references omitting the word "substantially," that the risk of VOL. 58 COURT OF APPEALS OF KANSAS 611

State v. Brown undue prejudice must "substantially outweigh" the probative value of the evidence). The admissibility of all evidence of other crimes and civil wrongs is governed by K.S.A. 60-455. Haygood, 308 Kan. at 1392. The statutory language of K.S.A. 60-455(a) and (b) allows a party to admit prior crimes evidence for the purposes of showing some material fact including, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." But this is not an exclusive list. Gunby, 282 Kan. at 56. Of special relevance to this case, our Supreme Court has allowed the admission of prior crimes evidence to show why the victim delayed reporting the defendant's sexual abuse. State v. McCune, 299 Kan. 1216, 1228, 330 P.3d 1107 (2014) ("[T]he State here appropriately introduced the prior sexual and physical abuse of A.R. and her family to show that A.R.'s failure to disclose the Lenexa rapes arose from a legitimate fear McCune would injure or kill her family."). On appeal, Brown does not challenge the materiality or rele- vancy of the prior crimes evidence or whether the delay in K.N.'s reporting of her sexual abuse was a disputed issue at trial. As a result, we will not review the first and second steps of the K.S.A. 60-455 analysis. Instead, Brown complains about the third step in the analysis: "The court erred in admitting the evidence because any limited probative value was far outweighed by its prejudicial effect." Our court

"reviews for abuse of discretion a district court determination that the probative value of evidence outweighs its potential for producing undue prejudice. A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. [Citation omitted]." State v. Boysaw, 309 Kan. 526, 539, 439 P.3d 909 (2019).

Our Supreme Court recently articulated a framework for analyzing whether K.S.A. 60-455 evidence was more probative than prejudicial:

"'In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought 612 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct.'" State v. Claerhout, 310 Kan. 924, 930, 453 P.3d 855 (2019) (quoting Boysaw, 309 Kan. at 541).

Analysis

At the outset, the State does not favor us with any citation to the record where the district court engaged in any particularized weighing of the probative value and prejudicial effect of the prior crimes evidence. Our review of the record shows the district judge simply stated:

"I see the—a nine-or ten-year-old child listening to and being part of, just based on presence in the home, to violent outbursts by a stepfather-type figure. . . . [T]hat would arguably be a basis to be scared of that individual and justification for delayed reporting, at least an argument to be made. And any prejudicial effect of the domestic violence incident, that does not outweigh the probative value that took place in this type of case." (Emphasis added.)

In Claerhout—as in the case on appeal—our Supreme Court was presented with a situation where the district court "conducted a generalized, superficial weighing of the probative value of the evidence against the potential for undue prejudice, making the conclusory determination that 'the probative value of the evidence outweighs its prejudicial effect.'" 310 Kan. at 930. The Supreme Court, in Claerhout, found that

"the district court's stated reasoning was so abbreviated that we cannot determine what factors, if any, it considered in reaching its conclusion that the probative value outweighed the potential prejudicial effect. To be sure, the Boysaw factors are not exclusive or all-encompassing, but the district court skirted carrying out its duty to protect a defendant from undue prejudice." 310 Kan. at 930-31.

Ultimately, our Supreme Court in Claerhout held that "[r]eversible error does not necessarily result in failing to weigh various factors on the record," and that "any deficiency in the analysis was harmless." 310 Kan. at 931. Similarly, in State v. Alvis, No. 116,575, 2017 WL 6546615, at *3-4 (Kan. App. 2017) (unpublished opinion), rev. denied 308 VOL. 58 COURT OF APPEALS OF KANSAS 613

State v. Brown

Kan. 1596 (2018), our court analyzed whether the district court's failure to particularize its weighing of the probative value and the prejudicial effect of K.S.A. 60-455 evidence was error. We concluded that the landmark opinion in Gunby, 282 Kan. at 56-57, required a particularized weighing, and "[s]ince the district court did not particularize its weighing of the probative value against the prejudicial effect, the district court erred in admitting evidence of [the defendant's] prior bad acts." 2017 WL 6546615, at *4. In the case on appeal, the district court's failure to state on the record the relevant factors it evaluated and the reasons undergird- ing the weighing of the probative and prejudice calculus frustrates appellate review. But while our Supreme Court in Claerhout encouraged future district courts to weigh the Boysaw factors on the record, it also stated that reversible error does not necessarily result from failing to weigh those factors on the record. Claerhout, 310 Kan. at 930-31. As a result, although the district court's omission was error, standing alone, under current Supreme Court jurisprudence, it was not reversible error. Next, employing the Boysaw factors, we weigh the probative value of the evidence and the prejudicial effect. Was the K.S.A. 60-455 evidence probative? Employing the Boysaw analytical framework—first, the prior crimes were undisputed. It was conclusively proven that the prior crimes were committed while K.N. was in the home, considerable property was damaged, the police were called, and Brown pled guilty on both occasions. This factor favors admission of the evidence. As to the second Boysaw factor, we question the probative quality of the two domestic violence incidents in proving that the reason K.N. delayed reporting her sexual abuse was because of her fear of Brown's violent tendencies. Although the State premised admission of the K.S.A. 60-455 evidence on this basis—inexplicably—K.N. was never asked and never testified that she delayed disclosing her sexual abuse because of her knowledge of Brown's violent behavior that he exhibited during the 2010 and 2011 incidents. Additionally, no witness testified that K.N. ever attributed the delay in disclosing her sexual abuse to either or both prior incidents. Moreover, a comparison of the charging periods for the individual counts alleged in the fifth amended information with the 614 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown dates of the two prior crimes raises questions as to whether the two prior crimes had occurred prior to some of the rapes. For example, the rape alleged in Count 1 occurred before either of the prior crimes. Given the 19-month charging period for the rape alleged in Count 2, it may have occurred before the 2010 incident but definitely occurred before the 2011 incident. And given the 31-month charging period for the rape alleged in Count 3, it may have occurred before both prior crimes. In summary, the probative quality of admitting the K.S.A. 60- 455 evidence was diminished because, given the offense date of the 2009 rape and the multiyear charging periods of the other rape and attempted rape, there is a real question whether the sexual assaults occurred months or years before the 2010 and 2011 domestic violence incidents. As a result, an important question is raised regarding whether the prior crimes dissuaded K.N. from disclosing the rapes at or about the time the sexual assaults were committed. This, in turn, weakened the probative value of the K.S.A. 60- 455 evidence, especially because K.N. never testified that the 2010 and 2011 incidents played any role in her delayed disclosure of the sexual assaults. Additionally, given K.N.'s responses to Officer Jones' questions immediately after the 2010 incident, there was first-hand evidence that the incident apparently did not cause her to fear Brown's violent tendencies. Lastly, both prior acts involved property damage following a domestic dispute with A.N. K.N. was not the subject of or involved in the disturbance or harmed during either incident. In short, the second Boysaw factor reveals the fragile probative quality of the prior crimes evidence. Regarding the third Boysaw factor, the reason K.N. delayed her disclosure was disputed. This fact would ordinarily tend to support the necessity of admitting K.S.A. 60-455 evidence. In this case, however, the dispute was not whether K.N. delayed her disclosure because the sexual assaults never occurred versus whether K.N. had a credible reason to delay her disclosure. Rather, as detailed earlier, the State presented some evidence to support many different reasons why, over the years, K.N. delayed disclosure of the sexual abuse. Yet, the only basis which the State focused on and presented extensive evidence at trial was the claim that K.N. VOL. 58 COURT OF APPEALS OF KANSAS 615

State v. Brown did not report her abuse because of Brown's violent behavior during the 2010 and 2011 incidents. Given the myriad of seemingly valid reasons to explain K.N.'s delay in disclosure over the years, the necessity to admit prior crimes evidence as to only one reason was lessened. The fourth Boysaw factor regarding the evaluation of the probative quality of the K.S.A. 60-455 evidence is whether the government can obtain any less prejudicial evidence. Apart from evidence about the two prior crimes, K.N. testified to one occasion when she told Brown she wanted him to stop the sexual assault. Although Brown stopped, he told K.N. that she "better not tell [her] grandma or [her] mom about what had happened." K.N. testified that she understood that Brown meant it in a threatening way. K.N. also testified that when she was young, she "was scared of what he might do." Although K.N. testified about how her fear of Brown caused her to delay reporting, proof of the prior crimes was potentially probative of providing factually based corroboration of K.N.'s belief in Brown's violent behavior. Could the district court have weighed the limited probative quality of the prior crimes evidence while restricting the scope and extent of the more prejudicial aspects of its proof? We believe the answer is yes. K.N., A.N., Officer Jones, Of- ficer Tonniges, and G.S. all testified about their knowledge of the prior crimes. A.N.'s testimony (14 transcript pages), Officer Jones' testimony (10 transcript pages), and Officer Tonniges' testimony (16 transcript pages) was especially lengthy and unnecessarily detailed regarding the two incidents. Additionally, 25 photographs of damaged property were admitted in evidence and one or the other of the officers used a laser pointer while describing the damage depicted on each individual photograph. A.N.'s handwritten statement about the 2011 incident was also admitted in evidence. Inexplicably, given this protracted and detailed testimony— ostensibly offered to prove K.N.'s fear of disclosing her sexual abuse due to her knowledge of the two incidents—K.N.'s testimony about both incidents was very brief (four transcript pages) and, as noted earlier, she never related her delay in reporting the sexual abuse to her fear of Brown based on her knowledge of the two incidents. 616 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

In summary, as to the fourth Boysaw factor relating to the nominal probative quality of the prior crimes evidence, we are convinced the State could have proven its point with considerably less testimony and physical evidence that would have mitigated the prejudice inherent in admitting extensive K.S.A. 60-455 evidence. Was the K.S.A. 60-455 evidence unduly prejudicial? Once again employing the Boysaw analytical framework, we consider three factors to evaluate prejudice. First, we consider the likelihood that such evidence will contribute to an improperly based jury verdict. Given the length and breadth of the testimony relating to the two prior crimes, we are persuaded that the exhaustive display of testimony showing that Brown on two occasions was violent and destroyed property likely established in the jury's mind that he was a general wrongdoer, a violent criminal who should not be believed when he generally denied any sexual impropriety with K.N. As a result, the unre- strained K.S.A. 60-455 evidence constituted an impermissible attack on Brown's character. See K.S.A. 60-447(b) ("[I]n a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, . . . if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her character."). Second, the extensive presentation of the prior crimes evidence was such that, rather than focus on the merits of the State's proof that Brown committed sexual offenses, the jury's attention was necessarily distracted by the details and magnitude of Brown's collateral wrongdoing. See State v. Perez, 306 Kan. 655, 671, 396 P.3d 78 (2017) ("The risk of undue prejudice 'turns not on whether the evidence is damaging but on whether the evidence is likely to contribute to an improper jury verdict or distract from the central issues at trial.'"). Third, as highlighted earlier, although the State could have chosen to limit the extent of its testimony and exhibits regarding the prior crimes evidence, it employed an unnecessarily time-consuming, no-holds-barred strategy, which only heightened the prejudicial effect by overemphasizing the prior crimes evidence. VOL. 58 COURT OF APPEALS OF KANSAS 617

State v. Brown

In conclusion, having conducted a particularized weighing of the probative value and prejudicial effect of the prior crimes evidence, we are convinced the risk of undue prejudice to Brown substantially outweighed the probative value of the evidence. As a result, the district court abused its discretion in its admission of the State's K.S.A. 60-455 evidence to prove that K.N. delayed disclosure of her sexual abuse due to her fear of Brown's violent behavior. Next, was the error reversible or harmless? "Admission of evidence under K.S.A. 60-455 is subject to harmless error analysis." Claerhout, 310 Kan. at 931; Gunby, 282 Kan. at 59. The erroneous admission of evidence is subject to review for harmless error under K.S.A. 2019 Supp. 60-261. Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is grounds for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. See State v. Lowery, 308 Kan. 1183, 1235, 427 P.3d 865 (2018); State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). Where an error implicates a statutory right, the party benefiting from the error must persuade the court that there is no reasonable probability that the error affected the trial's outcome in light of the entire record for it to be deemed harmless. State v. McCullough, 293 Kan. 970, 981-82, 270 P.3d 1142 (2012). On appeal, the State briefs one argument in support of its claim that any error is harmless, noting the limiting instruction given to the jury, and the general rule that an appellate court presumes the jury will follow the court's instructions. See State v. Mattox, 305 Kan. 1015, 1027, 390 P.3d 514 (2017). The State argues: "Nothing in the record suggests the jurors did not follow the instructions in reaching the verdict." For his part, Brown does not dwell on his harmless error analysis either, simply pointing out the extensive evidence admitted by the State to prove the prior crimes. In Gunby, our Supreme Court recognized at least three types of prejudice resulting from the admission of prior crimes evidence:

"'First a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might 618 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.' [Citation omitted.]" 282 Kan. at 48-49.

In the case on appeal, we are persuaded that the second and especially the third type of prejudice undermines our confidence in the verdict. The State called 5 witnesses who testified to at least 40 transcript pages of trial testimony and 26 exhibits to prove a very simple proposition—that one of many reasons why K.N. delayed disclosing her sexual abuse was because she was afraid of Brown. But, as detailed earlier, there were at least six other reasons the State presented why K.N. delayed her disclosure. Yet, none of these other reasons merited more than a page or two of trial testimony. Why the discrepancy in proof? Unlike the other reasons proffered by K.N., her fear of Brown afforded the State an evidentiary gateway to highlight and over- emphasize his criminal conduct in destroying property. This ex- ploitation of K.S.A. 60-455 evidence established Brown as a repeat criminal, adversely (and improperly) affected Brown's character, and undermined his credibility in a case where the jury was presented with the proverbial "he said, she said" scenario. Moreo- ver, the evidence of Brown's guilt was not overwhelming. Not unlike most child sexual assault cases, there were no third-party eye- witnesses to the crimes and no forensic evidence implicating Brown. Under the totality of these circumstances, we are not convinced that the district court's two sentence limiting instruction, which informed the jury that other crimes committed by the defendant "may be considered solely as evidence relating to delayed reporting by [K.N.] and for no other purpose," was sufficiently informative to mitigate the prejudice in admission of the K.S.A. 60-455 evidence. As written, the instruction did not admonish the jury to not consider—while it was deliberating the "evidence relating to delayed reporting"—that Brown was a violent criminal whose testimony, therefore, was not to be believed. VOL. 58 COURT OF APPEALS OF KANSAS 619

State v. Brown

We are convinced the State has not shown there is no reasonable probability that the error affected the trial's outcome considering the entire record. See McCullough, 293 Kan. at 983. Accord- ingly, we reverse and remand for further proceedings.

CONSOLIDATION OF CASES FOR TRIAL

For his second issue on appeal, Brown contends the district court erred in consolidating for trial the information charging Brown with sex crimes against K.N., and the information alleging that Brown attempted to intimidate A.N. and K.N. from testifying in the sex crimes case. We will consider this issue because, upon remand, the issue of consolidation will arise again. After Brown was charged with having committed the sexual abuse of K.N., he handwrote A.N. a multipaged letter from jail that was intercepted by corrections staff. At the time the letter was written, Brown had been ordered to have no contact with either A.N. or K.N. The letter was sexually graphic, recounting in detail consensual sexual conduct between A.N. and Brown and, in relevant part, Brown wrote: "I thought that you would have put a stop to this shit." As a result, Brown was charged in a separate information with intimidation of a witness (A.N.) and aggravated intimidation of a victim (K.N.). Upon the State's motion, the district court ordered consolidation of the cases for jury trial.

Motions and Pretrial Hearings Regarding Consolidation

Prior to trial, Brown filed a motion in limine to prevent the State from, among other things, offering the letter as evidence in the sexual assault trial. For its part, the State filed a motion to consolidate both criminal cases for trial. At a hearing on the motions, Brown contended the letter was highly prejudicial regarding the sex crimes case because it contained several pages graphically discussing Brown and A.N.'s consensual sex life. In particular, given its contents, defense counsel argued the letter made the defendant appear "oversexualized . . . . an oversexed male." In response, the State argued that "it is highly relevant to the underlying criminal sex case. . . . I think it's relevant to show his campaign of how to pressure these witnesses . . . ." The State agreed, however, that portions of Brown's letter discussing drug 620 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown use during sex, prior incarcerations, possible sentences upon conviction, and plea bargaining should be redacted prior to its admission in evidence. The district judge determined the letter was highly relevant, material, and not overly prejudicial:

"The question really is whether that probative value that's contained in that document is substantially outweighed by its prejudicial effect. And the prejudicial effect as described by Defense counsel is really the graphic nature, description of the sex acts. The Court did consider the amount of sexual contact that was described . . . . The real issue is whether that graphic description, the profanity, the detailed description of sex acts, would be so offensive to either embarrass, to show that he's, I guess, perverse [sic] is probably the way that Defense counsel is trying to couch it, or oversexed I think is the word, phrase that you used, the Court doesn't see that prejudicial effect outweighing the probative value. The jurors are going to be able to put that kind of conduct and comment into context . . . and give that letter the weight it deserves. . . . [T]he Court would find that the probative value through the attempt to change or dissuade a witness from testifying is relevant. Under [K.S.A.] 60-455 analysis, obviously that's another crime that's being alleged, and it would come in as to the [sex crimes] case as intent, his essentially consciousness of guilt type argument, and his motive, it would all be relevant to those factors under [K.S.A.] 60-455, and the Court is finding as to the prejudicial effect . . . which would be the next step in that analysis, and I find that the probative value is not outweighed by its prejudicial effect. And note as well that I agree with counsel that any evidence presented by the State should be prejudicial, so it's related to the amount of prejudice that the Court finds is not sufficient to eliminate its use by the State as to all counts now presented in [the sex crimes case] and [the witness intimidation case]."

The district court found that consolidation was appropriate under K.S.A. 22-3203 and K.S.A. 22-3202 because the two informations related to the same underlying conduct and witnesses. Brown's motion to reconsider was denied. He also renewed his objection to consolidation in posttrial motions. During trial, Brown was cross-examined by the prosecutor regarding the sexual contents of his letter to A.N. Brown was questioned about why he wrote about sliding his fingers in and out of A.N.'s vagina:

"[THE STATE:] [I]sn't that exactly what [K.N.] has described in court this week that you did do to her? "[BROWN:] I mean that's why I put that in the letter because . . . "[THE STATE:] No further questions. "THE COURT: Any redirect? "[DEFENSE COUNSEL:] Mr. Brown, why did you put that in the letter? VOL. 58 COURT OF APPEALS OF KANSAS 621

State v. Brown

"[BROWN:] Well, I mean, I had seen the discovery or whatever, I think that's what it's called, and that's what she was claiming what I had done. "[DEFENSE COUNSEL:] What was your point in telling [A.N.] that? "[BROWN:] That I didn't do that to [K.N.]."

During closing argument, the prosecutor asserted that the contents of the letter were evidence that Brown committed the three rapes of K.N.:

"[THE STATE]: . . . So what is it that you infer from this letter. "Sex, sex, sex, sex at the front part of the letter, folks. And then it gets to, after describing all of that, he says, we had great times, and this is not even half of the memories that we have shared. I [explicit] loved you [A.N.] I loved the family and that bond we shared. Now how, think about that long and hard, and would I ever do any of that to [K.N.] Think of how I used to rub your [vagina] and how I used to slide my fingers in and out of you, so forth, so on. Do you think I'd want to share any of that with [K.N.]? Isn't it interesting that that sex act is exactly what the theory of the case is? "[DEFENSE COUNSEL]: Objection, Judge. "THE COURT: Sustained. "[THE STATE]: Isn't it interesting that that description, what has the State charged in 1, 2, and 3? "[DEFENSE COUNSEL]: Objection, Judge. "[THE COURT]: Sustained. The jury will disregard that last comment." (Emphases added.)

After the prosecutor concluded her argument, Brown moved for a mistrial:

"[DEFENSE COUNSEL]: "The State has intentionally argued the evidence we have discussed over and over again in this case, the letter being used to find the defendant guilty of the sexual acts. After the court sustained my first objection, she continued to make those arguments asking the [jury] to use that letter to convict him of the first several counts. I understand the Court told them to disregard that. The bell is rung, you can't unring it. That is out there. And, again this was an intentional prepared argument, exactly using that offense for the purpose that it's not intended to be used. "THE COURT: The State? "[THE STATE]: Judge, I think the statement speaks for itself. . . . there's a limiting instruction about the purpose of the letter. I don't exactly even recall what I said. "THE COURT: Well, counsel what you said, you used the paragraph in the letter where the defendant describes digital penetration between he and [A.N.], and indicates how would he think about that specific type of penetration, and his denial, [K.N.], referring he knew it because he did it before [K.N.] essentially what you were saying. "[THE STATE]: I ask that the Court instruct the jury to disregard that. "THE COURT: I did that already, counsel." 622 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

The district judge denied the motion for mistrial, stating, "I don't see that as so prejudicial as to require the mistrial. The jury can follow my instructions." The district court gave the jury this limiting instruction regarding the letter:

"Evidence has been admitted tending to show the defendant was in a sexual relationship with [A.N.]. If considered by you at all, it may be considered only as evidence of the relationship between the defendant and [A.N.] when considering the offenses of intimidation of a witness and aggravated intimidation of a victim and for no other purpose." (Emphasis added.)

Standards of Review and Summary of Law Regarding Consolida- tion

In analyzing joinder or consolidation issues, the district court and appellate courts use a three-step analysis with the following standards of review: On the first step, the court determines whether K.S.A. 22-3203 permits joinder. Under that statute, multiple complaints against a defendant may be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of multiple crimes in a single complaint: (1) the charges must be of the "same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." Whether one of these conditions is satisfied is a fact-specific inquiry, and the appellate court will review the district court's factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. State v. Ritz, 305 Kan. 956, 961, 389 P.3d 969 (2017). See State v. Robinson, 303 Kan. 11, 204, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016) (defining common scheme or plan). On the second step, because K.S.A. 22-3202(1) provides that "charges 'may' be joined," a district court retains discretion to deny a joinder request even if a statutory condition is met. We review this decision for an abuse of discretion." State v. Hurd, 298 Kan. 555, 561, 316 P.3d 696 (2013). VOL. 58 COURT OF APPEALS OF KANSAS 623

State v. Brown

On the third step, if an error occurred in the preceding steps, courts determine whether the error resulted in prejudice, i.e., whether the error affected a party's substantial rights. See K.S.A. 2019 Supp. 60-261; State v. Carter, No. 119,315, 2020 WL 3885636, at *7 (Kan. 2020); Hurd, 298 Kan. at 561. On appeal from a denial of a motion to sever, the party benefitting from the error is responsible for demonstrating there is no reasonable probability the error affected the trial's outcome considering the entire record. State v. Carr, 300 Kan. 1, 95, 331 P.3d 544 (2014), rev'd on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016); Hurd, 298 Kan. at 564.

Analysis

At the outset, on appeal, Brown does not contend that the district court erred regarding the first step of the analysis. Brown concedes that under K.S.A. 22-3203 and K.S.A. 22-3202(1) the State established the legal requirements for consolidation. As a result, we will not review whether consolidation was permissible under Kansas statutes. Brown's complaint is with the second step of the analysis which asks whether the district court erred in exercising its discretion to consolidate the two informations even though consolidation was legally permissible. In response, the State emphasizes that the two informations were, consistent with K.S.A. 22-3203, properly consolidated for trial. Moreover, the State defends the district court's consolidation ruling because Brown's prejudice argument "ignores the findings of the trial court that the letter was relevant to both cases." We question whether the letter was relevant to the sexual assault case. Brown's one sentence in the letter—"I thought that you would have put a stop to this shit"—was obviously relevant to prove the intimidation of a witness charge against A.N. But the district court viewed the letter as also relevant to prove Brown's guilt in committing the sexual assaults. Employing a short-form K.S.A. 60- 455 analysis, the district court found that the letter was "another crime that's being alleged, and it would come in as to the [sex crimes] case as intent, his essentially consciousness of guilt type argument, and his motive, it would all be relevant to those factors under [K.S.A.] 60-455." 624 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown

Of note, "'Kansas caselaw and the provisions of K.S.A. 22- 3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455.'" State v. Bates, No. 117,419, 2019 WL 1412600 (Kan. App. 2019) (unpublished opinion) (quoting State v. Smith- Parker, 301 Kan. 132, 161, 340 P.3d 485 [2014]), rev. denied 310 Kan. 1064 (2019). Whether the letter qualified as K.S.A. 60-455 evidence relevant to the sexual assault case is of no consequence in the consolidation analysis. But whether the letter was probative to show that Brown committed one or more of the sexual assaults—ostensibly the basis for the district court's discretionary consolidation decision—is relevant to the second step of the analysis. The probative quality of the letter as proof of the sexual assaults is difficult to discern. The letter states in part:

"I [expletive] loved you, [A.N.]. I loved the family [a]nd bond that we shared. Now think long and hard do you think I would ever want to do any of that with [K.N.]? . . . How could you ever even entertain the thought of any sexual activity with [K.N.] or [names of other children]."

A fair reading of the letter reveals that Brown explicitly denied having sexual activity with K.N. Moreover, Brown's graphic recollection of consensual sex acts with A.N. was an attempt by Brown to pull on A.N.'s heartstrings and use their sexual relationship and memories about their past as a family (Brown had fa- thered three of A.N.'s children during their eight-year relationship) to make A.N. feel guilty about cooperating with the prosecution. Unlike the district court, we fail to see how the contents of the letter tended to prove Brown's intent or motive to sexually assault K.N. or his consciousness of guilt in doing so. The district court's view that the letter was probative to prove that Brown sexually assaulted K.N. is not only questionable, but it also directly contra- dicts the limiting instruction the court provided the jury. In the instruction, the district court admonished the jury that it could only consider the letter when evaluating whether Brown committed the intimidation of witness charges "and for no other purpose." Under the second step of the analysis, in considering whether the district court abused its discretion in consolidating the two informations, we are unable to reconcile the inconsistency of the VOL. 58 COURT OF APPEALS OF KANSAS 625

State v. Brown district court's finding that consolidation was appropriate because the letter was probative evidence in the sexual assault case, yet specifically instruct the jury at trial not to consider the letter for that purpose. This inconsistency underscores the erroneous rationale for the district court's consolidation ruling. Given the letter's lack of probative value in proving the sexual assault case, we hold the district court abused its discretion in consolidating the informations for trial. Given this error in the second step, we proceed to the third step in the analysis and evaluate whether the error resulted in prejudice, i.e., whether the error affected a party's substantial rights. See K.S.A. 2019 Supp. 60-261; Carter, 2020 WL 3885636, at *7; Hurd, 298 Kan. at 561. At the outset, the State misstates the burden of proof. The party benefitting from the error—in this case, the State—is responsible for demonstrating there is no reasonable probability the error affected the trial's outcome considering the entire record. Hurd, 298 Kan. at 564.

The State's prejudice argument consists of four sentences:

"The trial court found that the letter was relevant to both cases. The court would have admitted the letter in the [sexual crimes] case, even if the [witness intimidation case] had not been consolidated. The jury did acquit on one charge which show[s] the jury was considering each charge . . . individually and the letter did not cause the jury to convict when they otherwise would have acquitted. The Defendant cannot establish error."

Brown counters:

"The district court's error in consolidating cases was not harmless. The case against Mr. Brown for the sex crime charges was not overwhelming. With no physical corroborating evidence, the jury's verdict turned upon the credibility of the complaining witness and Mr. Brown. Without the jury's consideration of the sexually graphic letter, the likelihood of a different result is great enough to undermine confidence in the outcome of the trial."

At the outset, the district court clearly understood the "graphic description, the profanity, the detailed description of sex acts," had the potential to persuade a jury that Brown was, as characterized by defense counsel, "oversexed." But the district court, noting that Brown and A.N. had an eight-year relationship, discounted the im- 626 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown pact of the vivid consensual sex acts because "[t]he jurors are going to be able to put that kind of conduct and comment into context and see that—and give that letter the weight it deserves." Brown disagrees with the district court's assessment of the letter's prejudicial effect. Based on the graphic contents of the letter, Brown argues that the jury viewed him "as a sexual deviant or fiend in deliberating his guilt for the child sex crime charges. As a result, the jury was much more likely to disbelieve Mr. Brown's denial and to find him guilty." We think that Brown has the better argument. The contents of the lengthy letter vividly describing Brown and A.N.'s consensual sexual activities—laced with profanity and vulgar, disparaging terms for A.N.'s genitalia—surely placed Brown in an unfavorable light before the jury, even though his sexual activities with A.N. were consensual and irrelevant to whether he sexually assaulted K.N. The letter had the effect of improperly impugning Brown's character and giving the impression that Brown's reveling in consensual sexual behavior necessarily showed his criminal intent or motive in sexually assaulting K.N. This prejudicial effect was only heightened by the State in cross-examining Brown and in closing argument. The prosecutor questioned Brown about his statements in the letter describing his digital penetration of A.N., and his claim that he would not engage in that particular sex act with K.N. Then, directly contrary to the district court's limiting instruction, the prosecutor noted to the jury in closing argument that Brown's description of his digital penetration of A.N. was similar to the digital penetration the State alleged that Brown perpetrated against K.N. After Brown's objection was sustained, the prosecutor immediately rephrased the question but essentially repeated it. Another objection was sustained and the district court sua sponte directed the jury to disregard the question. Like the prejudice analysis regarding the district court's admission of K.S.A. 60-455 evidence, we again observe that the evidence of the sexual assaults was not overwhelming, simply because there were no third-party witnesses or incriminating forensic evidence. One sentence of the letter tended to prove Brown's guilt of obstructing A.N. as a witness, but the remainder of the VOL. 58 COURT OF APPEALS OF KANSAS 627

State v. Brown lengthy document comprising salacious details of Brown and A.N.'s sex life presented Brown in an unflattering light due to its subject matter, denigrating sexual colloquialisms, and profane language. In short, the sexual comments, while of limited probative value to prove the obstruction charges, were especially prejudicial to Brown regarding the sexual assault case. In closing argument, the prosecutor—in contravention of the district court's limiting instruction—took full advantage of this prejudice by high- lighting to the jury that one aspect of Brown's consensual sexual activity was similar to the illegal sexual activity that K.N. alleged Brown had committed over many years. We are convinced the State has not shown a reasonable probability that the consolidation did not affect the trial's outcome considering the entire record. See Hurd, 298 Kan. at 564; McCullough, 293 Kan. at 983. Accordingly, because the district court abused its discretion by consolidating the cases, and this error adversely affected Brown's substantial rights in the sexual assault case, we reverse and remand with directions to sever the two cases and for further proceedings in separate trials.

DENIAL OF THREE MOTIONS FOR MISTRIAL

For his third issue on appeal, Brown complains that the district court failed to grant a mistrial on three separate occasions. Brown first requested a mistrial when the State violated a motion in limine to exclude any reference to Brown serving time in jail or prison. At trial, the State admitted a redacted recording of an interview with K.N. and M.N., which included the statement, "when [Brown] got out." The defense objected because, contrary to the State's agreement, it had failed to redact that reference in compliance with the district court's order in limine. The State admitted this error in redaction was "clear error" but argued it did not warrant a mistrial because the jury had already heard evidence about Brown's domestic violence and could infer that Brown's getting out of jail was related to those incidents. The district judge agreed there was error but denied the motion for mistrial. The second motion for mistrial occurred when the State introduced a recording of Detective Londono's interview of K.N. and A.N. During that recording, there was mention of Brown being in court, which violated the order in limine. The defense objected, 628 COURT OF APPEALS OF KANSAS VOL. 58

State v. Brown and the prosecutor conceded the error but argued it did not warrant a mistrial. The district court denied Brown's motion but found, "[t]he analysis is the same, it seems almost identical to the prior. It needs to not be in. It is error." Brown's third motion for mistrial was made during the prosecutor's closing argument when she related Brown's description of consensual digital penetration of A.N. in the letter to K.N.'s similar description of Brown's sexual assaults. The district court found these comments, which we discussed earlier, were in error on both occasions but did not justify a mistrial. Given our holding reversing and remanding this case it would serve no purpose to review the district court's rulings denying the three motions for mistrial. Given the State's concessions of error and the district court's findings of error on all three occasions, we are satisfied these errors will not recur upon retrial.

CUMULATIVE ERROR

For his final issue on appeal, Brown contends the three trial errors considered together resulted in cumulative error requiring a reversal of his convictions and a new trial. The State does not address the errors in admission of the K.S.A. 60-455 evidence or consolidation. Instead, it responds that any cumulative errors in the district court's rulings regarding Brown's three motions for mistrial were harmless because two of the statements likely went unnoticed by the jury and the district court instructed the jury to disregard the prosecutor's arguments made during closing arguments. Kansas appellate courts apply "a de novo standard when determining whether the totality of circumstances substantially prejudiced a defendant and denied the defendant a fair trial based on cumulative error." State v. Brown, 298 Kan. 1040, 1056, 318 P.3d 1005 (2014). The analysis to be used when evaluating cumulative error was recently stated by our Supreme Court:

"The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how VOL. 58 COURT OF APPEALS OF KANSAS 629

State v. Brown the trial judge dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. 'No prejudicial error may be found upon this cumulative effect rule . . . if the evidence is overwhelming against the defendant.' [Citations omitted.]" State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014).

See State v. Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016).

Preliminarily, the cumulative error rule is ordinarily applied when two or more harmless errors are collectively viewed as substantially prejudicing the defendant and denying the defendant a fair trial. In this case, we have found the admission of K.S.A. 60- 455 evidence and consolidation of the two informations individually constituted reversible error and, thus, the cumulative error rule is not applicable. Consistent with the purpose underlying the cumulative error rule, however, we pause to note how the two reversible errors we have identified, when aggregated, only heightened the prejudicial effect in denying Brown a fair trial. Together, the reversible errors acted synergistically with the end result that the jury received a substantial quantity of derogatory evidence to improperly dis- credit Brown, impeach his character, or at least put him in a bad light in defending the sexual assault case where the critical evidence was his testimony compared to K.N.'s testimony. Moreover, as mentioned earlier, the evidence of guilt was not overwhelming given the lack of a third-party eyewitness or incriminating forensic evidence. Whether considered singularly or together, we are convinced that Brown did not receive a fair trial.

Reversed and remanded with directions.