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 57, No. 4

Opinions filed in January - March 2020

Cite as 57 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. G. JOSEPH PIERRON, JR...... Olathe HON. HENRY W. GREEN, JR...... Leavenworth HON. THOMAS E. MALONE ...... Wichita HON. STEPHEN D. HILL...... Paola HON. MICHAEL B. BUSER ...... Overland Park HON. STEVE LEBEN ...... Fairway 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

(III)

KANSAS COURT OF APPEALS TABLE OF CASES 57 Kan. App. 2d No. 4

PAGE

Aikins v. Gates Corp...... 875 Burch v. Howard ...... 860 Estate of Randolph v. City of Wichita ...... 686 Henderson v. Board of Montgomery County Comm'rs ...... 818 In re Care & Treatment of Jones ...... 808 In re Lien Against the District at City Center ...... 884 In re Tax Appeal of Southwestern Bell Tel. Co...... 723 Long v. Houser ...... 675 State v. Arceo-Rojas ...... 741 State v. Daino ...... 653 State v. Hayes ...... 895 State v. Henry ...... 846 State v. Lamb ...... 633 State v. McCroy ...... 643 State v. McKenna ...... 731 State v. Roberts ...... 836 State v. Terning ...... 791

(IV) UNPUBLISHED OPINIONS OF THE COURT OF APPEALS

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

A.W. v. L.M.Y...... 121,443 Reno ...... 02/14/2020 Reversed; remanded with directions Aikins v. Gates Corp...... 120,769 Workers Comp. ... 01/31/2020 Affirmed Banks v. Spirit Aerosystems Inc...... 120,335 Workers Comp. ... 02/14/2020 Affirmed Bloom v. State ...... 120,739 Reno ...... 03/06/2020 Affirmed Bogue v. Palomino Petroleum, Inc...... 119,367 Sedgwick ...... 01/21/2020 Affirmed Castro-Trejo v. Moreno ...... 121,063 Workers Comp. ... 01/31/2020 Affirmed City of Junction City v. Franklin ...... 121,120 Geary ...... 02/21/2020 Affirmed City of Salina v. Matthews . 121,728 Saline ...... 02/28/2020 Affirmed 121,732 121,734 City of Salina v. Matthews . 121,721 Saline ...... 02/28/2020 Affirmed City of Topeka Municipal Court v. Lister...... 120,713 Shawnee ...... 02/21/2020 Affirmed City of Wichita v. Jacobs.... 120,248 Sedgwick ...... 02/07/2020 Reversed; remanded with directions Dawson v. BNSF Railway Reversed; Company ...... 112,925 Wyandotte ...... 01/21/2020 remanded Delehanty v. Board of Education of U.S.D. No. 475 ...... 120,122 Geary ...... 01/21/2020 Affirmed Dern v. State ...... 120,152 Pottawatomie...... 03/06/2020 Affirmed Gambrill v. Blue Valley Reversed; Surgical Assocs., LLC ...... 121,170 Johnson ...... 01/03/2020 remanded with directions Goodpasture v. State ...... 120,195 Riley ...... 02/21/2020 Affirmed Guilbeaux v. Schnurr ...... 121,032 Butler ...... 01/10/2020 Affirmed Haley v. Employment Security Bd. of Review ...... 120,153 Sedgwick ...... 03/06/2020 Affirmed Harbacek v. Cline ...... 121,521 Butler ...... 02/28/2020 Affirmed Harris v. City Cycle Sales, Reversed; Inc...... 121,127 Geary ...... 01/21/2020 remanded with directions In re A.P...... 121,537 Leavenworth ...... 01/31/2020 Affirmed In re A.T...... 121,895 Ford ...... 02/28/2020 Affirmed In re A.W...... 121,482 Douglas ...... 01/31/2020 Affirmed 121,483 121,484 In re Adoption of T.M.M.H. 119,944 Johnson ...... 01/10/2020 Affirmed DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

In re Care & Treatment of Craft ...... 121,568 Wyandotte ...... 02/21/2020 Affirmed In re L.C...... 120,072 Johnson ...... 01/10/2020 Affirmed 120,073 In re M.M...... 121,796 Johnson ...... 01/31/2020 Affirmed Kling v. State ...... 120,869 Marshall ...... 01/31/2020 Reversed; remanded with directions Littlejohn v. State...... 115,904 Sedgwick ...... 01/10/2020 Reversed; remanded with directions Loggins v. State ...... 120,703 Sedgwick ...... 01/24/2020 Affirmed Madison v. Kansas Dept. of Revenue ...... 120,186 Rooks...... 01/10/2020 Affirmed Murray v. Kansas Dept. of Revenue ...... 120,357 Dickinson ...... 02/14/2020 Affirmed Peacock v. Smiley ...... 120,455 Reno ...... 02/21/2020 Affirmed in part; reversed in part; remanded with directions Peralta-Diaz v. Ortega ...... 120,291 Sedgwick ...... 02/07/2020 Affirmed Reed v. State ...... 119,484 Wyandotte ...... 03/06/2020 Affirmed Richard v. State ...... 120,298 Sedgwick ...... 01/21/2020 Affirmed Ritter v. Gas-Mart USA, Inc. Reversed; ...... 120,782 Chase ...... 03/06/2020 remanded with directions Rivera v. State ...... 119,577 Sedgwick ...... 02/14/2020 Affirmed; appeal dismissed Schaberg v. State ...... 119,599 Sedgwick ...... 02/14/2020 Affirmed State v. Alger ...... 121,351 Montgomery...... 03/06/2020 Affirmed State v. Andrews ...... 113,971 Sedgwick ...... 03/06/2020 Affirmed State v. Applegate ...... 120,303 Sedgwick ...... 02/14/2020 Affirmed State v. Bailey...... 121,177 Johnson ...... 02/14/2020 Affirmed 121,178 State v. Ballard ...... 118,739 Reno ...... 01/31/2020 Affirmed State v. Barlow ...... 120,166 Geary ...... 02/07/2020 Affirmed State v. Befort ...... 120,482 Saline ...... 02/07/2020 Affirmed 120,483 120,484 120,485 120,576 State v. Bergman ...... 120,423 Sedgwick ...... 03/06/2020 Affirmed State v. Bewley ...... 121,070 Montgomery...... 02/28/2020 Affirmed State v. Biurquez ...... 121,197 Sedgwick ...... 01/21/2020 Affirmed State v. Black ...... 120,412 Reno ...... 02/14/2020 Affirmed State v. Blaurock ...... 121,140 Wyandotte ...... 02/07/2020 Affirmed State v. Boatwright ...... 121,210 Shawnee ...... 01/10/2020 Affirmed

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

State v. Bollig ...... 120,398 Trego ...... 02/21/2020 Reversed; remanded with directions State v. Britton ...... 121,306 Reno ...... 01/31/2020 Affirmed State v. Brown ...... 120,581 Sedgwick ...... 01/31/2020 Affirmed 120,582 State v. Brownfield ...... 119,853 Reno ...... 01/31/2020 Affirmed in part; remanded with directions State v. Brunson ...... 118,555 Wyandotte ...... 02/07/2020 Affirmed State v. Bubeck ...... 121,401 Sedgwick ...... 03/06/2020 Appeal dismissed 121,402 121,403 State v. Bunce ...... 119,048 Douglas ...... 01/10/2020 Reversed; remanded with directions State v. Butler ...... 121,251 Sedgwick ...... 02/28/2020 Affirmed 121,252 State v. Cain ...... 121,243 Sedgwick ...... 02/28/2020 Affirmed State v. Calisti...... 119,917 Jackson ...... 02/21/2020 Affirmed in part; reversed in part State v. Canady ...... 119,689 Sedgwick ...... 02/07/2020 Sentences 119,690 vacated; cases remanded with directions State v. Clarke ...... 121,547 Sedgwick ...... 02/28/2020 Affirmed State v. Coffman ...... 120,553 Saline ...... 02/14/2020 Affirmed 120,554 State v. Crabbs ...... 120,723 Rice ...... 02/14/2020 Affirmed State v. Culver ...... 121,216 Sedgwick ...... 01/24/2020 Appeal dismissed State v. Curry ...... 120,979 Seward ...... 02/28/2020 Affirmed State v. Dailey ...... 120,845 Sedgwick ...... 03/06/2020 Reversed; remanded with directions State v. Davis ...... 120,645 Sedgwick ...... 02/28/2020 Affirmed State v. Dean ...... 121,111 Sedgwick ...... 01/24/2020 Affirmed State v. Deleon...... 120,708 Finney ...... 01/31/2020 Affirmed State v. Dishner ...... 120,422 Shawnee ...... 02/07/2020 Reversed; remanded with directions State v. Doornbos...... 120,969 Sedgwick ...... 01/21/2020 Affirmed in part; dismissed in part State v. Downing ...... 121,641 Sedgwick ...... 02/14/2020 Affirmed State v. Dreiling ...... 121,163 Barton ...... 02/28/2020 Affirmed 121,164 121,165 State v. Esquivel ...... 121,653 Ford ...... 02/14/2020 Appeal dismissed State v. Euler ...... 119,761 Johnson ...... 02/07/2020 Affirmed

(VII)

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Fehr ...... 121,405 Sedgwick ...... 01/31/2020 Affirmed State v. Florence ...... 120,105 Sedgwick ...... 02/21/2020 Affirmed State v. Franklin ...... 120,378 Douglas ...... 02/07/2020 Affirmed State v. Gant ...... 118,987 Wyandotte ...... 01/10/2020 Affirmed State v. Gilmore ...... 120,070 Johnson ...... 02/07/2020 Affirmed State v. Gosling ...... 121,188 Wyandotte ...... 02/28/2020 Affirmed State v. Griffin ...... 120,995 Wyandotte ...... 01/24/2020 Affirmed State v. Griffith ...... 120,794 Reno ...... 01/24/2020 Affirmed State v. Haynes ...... 120,533 Saline ...... 02/14/2020 Affirmed State v. Hazelton ...... 119,703 Brown ...... 01/10/2020 Affirmed State v. Hill...... 120,550 Harvey ...... 01/24/2020 Affirmed State v. Holley ...... 120,757 Sedgwick ...... 02/28/2020 Appeal dismissed State v. Hooper ...... 121,185 McPherson ...... 02/28/2020 Affirmed State v. Jones ...... 120,989 Saline ...... 02/14/2020 Appeal dismissed State v. Judd ...... 121,523 Sedgwick ...... 02/28/2020 Affirmed State v. Kanatzar ...... 119,399 Shawnee ...... 02/07/2020 Affirmed State v. Kendrick ...... 120,052 Labette ...... 02/21/2020 Reversed; remanded with directions State v. Kuhnert ...... 120,160 Sedgwick ...... 01/31/2020 Affirmed State v. Lewis ...... 121,100 Sedgwick ...... 02/14/2020 Affirmed State v. Luebbert ...... 118,965 Saline ...... 01/10/2020 Affirmed State v. Luthi ...... 120,644 Riley ...... 02/28/2020 Affirmed State v. Martinez ...... 121,623 Sedgwick ...... 02/28/2020 Affirmed State v. McCormick ...... 119,539 Montgomery...... 01/21/2020 Affirmed State v. McDowell ...... 121,707 Ford ...... 02/14/2020 Appeal dismissed State v. Metzger ...... 121,133 Saline ...... 02/28/2020 Affirmed 121,283 State v. Mobley ...... 120,419 Reno ...... 02/14/2020 Affirmed State v. Murphy ...... 120,771 Sedgwick ...... 01/24/2020 Affirmed State v. Nelson ...... 120,963 Sedgwick ...... 02/21/2020 Affirmed State v. Nesler...... 121,473 Sedgwick ...... 02/28/2020 Affirmed State v. Nieder ...... 120,714 Leavenworth ...... 03/06/2020 Affirmed State v. Payton ...... 119,721 Pottawatomie...... 02/21/2020 Affirmed State v. Peeples ...... 120,010 Greenwood ...... 01/10/2020 Affirmed in part; 120,011 vacated in part; remanded with directions State v. Peterson ...... 121,239 Sedgwick ...... 02/28/2020 Affirmed State v. Rayton...... 121,271 Shawnee ...... 01/10/2020 Affirmed State v. Reider ...... 120,534 Sedgwick ...... 02/28/2020 Vacated; remanded with directions State v. Relford ...... 120,730 Sedgwick ...... 02/07/2020 Affirmed State v. Rogers ...... 120,951 Kiowa ...... 01/31/2020 Affirmed State v. Sanders ...... 121,115 Sedgwick ...... 02/28/2020 Affirmed State v. Schneithorst ...... 121,555 Reno ...... 02/28/2020 Affirmed State v. Shields ...... 119,844 Sedgwick ...... 02/07/2020 Affirmed

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

State v. Snyder ...... 119,452 Saline ...... 02/14/2020 Affirmed in part; reversed in part; vacated in part; remanded for resentencing State v. Stewart ...... 120,655 Lyon ...... 03/06/2020 Affirmed State v. Teschke ...... 121,189 Johnson ...... 01/10/2020 Reversed; remanded with directions State v. Thummel ...... 119,331 Sheridan ...... 02/14/2020 Affirmed State v. Toliver ...... 120,506 Riley ...... 02/21/2020 Affirmed State v. Vigil ...... 118,670 Reno ...... 02/14/2020 Affirmed State v. Villefranc ...... 121,290 Cloud ...... 02/28/2020 Affirmed State v. Villela ...... 119,549 Reno ...... 01/10/2020 Affirmed State v. Walker ...... 121,420 Sedgwick ...... 01/10/2020 Appeal dismissed State v. Welch...... 121,559 Sedgwick ...... 02/28/2020 Appeal dismissed State v. Whittier ...... 120,796 Reno ...... 02/21/2020 Vacated; remanded with directions State v. Zapata ...... 120,529 Riley ...... 02/14/2020 Affirmed in part; reversed in part; remanded with directions Strait v. State ...... 120,496 Pawnee ...... 01/21/2020 Affirmed Vaile v. Shelter Mut. Ins. Co...... 120,862 Labette ...... 02/07/2020 Affirmed Vanderpool v. State ...... 118,949 Wyandotte ...... 02/07/2020 Affirmed Watts v. State ...... 117,184 Johnson ...... 02/14/2020 Affirmed Wheeler v. State ...... 120,189 Shawnee ...... 01/03/2020 Affirmed Wilson v. State...... 120,218 Sedgwick ...... 03/06/2020 Affirmed

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SUBJECT INDEX 57 Kan. App. 2d No. 4 (Cumulative for Advance Sheets 1, 2, 3 and 4) Subjects in this Advance Sheet are marked with *.

PAGE

ADMINISTRATIVE LAW:

Driver's License Suspension—Judicial Review—Burden of Proof. Ap- peals from administrative suspensions of driver's licenses are subject to review under the Kansas Judicial Review Act (KJRA). They are considered by the district court de novo. The burden of proving the invalidity of the agency's action rests on the party asserting invalidity. Molina v. Kansas Dept. of Revenue ……………………………..…… 554

Driving under Influence—Licensee's Challenge to Substantial Compli- ance Standard. Substantial compliance is sufficient to satisfy the protocols established by the Kansas Department of Health and Environment (KDHE) for administering an Intoxilyzer 9000 test of a suspected intoxicated driver. In driver's license suspension cases, the substantial compliance standard requires a licensee seeking to overturn the agency's action to demonstrate a violation of the KDHE testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results. Molina v. Kansas Dept. of Revenue ………………………………….… 554

— Protocol for Breath Test. The 20-minute alcohol deprivation period required before administering an Intoxilyzer 9000 test ends when the breath test is actually administered by the test subject providing a breath sample, not when the Intoxilyzer 9000 machine is turned on prior to the test. Molina v. Kansas Dept. of Revenue ………………………………...… 554

Kansas Judicial Review Act—Appellate Review. According to K.S.A. 2018 Supp. 77-621(d), in reviewing the evidence in light of the record as a whole, a court shall not reweigh the evidence or engage in de novo review. Lario Oil & Gas Co. v. Kansas Corporation Comm'n ………...... …… 184

Regulations Do Not Prevent Prisoner from Changing Name. There is nothing in K.A.R. 44-12-506 that precludes a person from changing his or her name while incarcerated. In re Petition of Clark ………...……….. 220

ADOPTIONS:

Statutory Requirements for Adoption. In a private adoption in which the proposed adopting party seeks to terminate the parental rights of the parent, the proposed adopting party may bring the action either by filing separate actions to terminate parental rights and for adoption or by filing both claims in a single petition. If the claims are filed together and a consent to the adoption is not filed at the same time as the petition as required by K.S.A. 2018 Supp. 59-2128(f), that has no effect on the court's subject-matter jurisdiction over the claim to terminate parental rights. In re Adoption of E.D. ……………………………………...………… 500

57 KAN. APP. 2d SUBJECT INDEX XI

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APPEAL AND ERROR:

Abuse of Discretion—Question of Law. Whether the district court abused its discretion by applying an incorrect legal standard is a question of law. State v. Arrizabalaga ………………………………………..………….. 79

Challenge to Waiver of Right to Jury Trial—Courts Will Consider First Time on Appeal. Kansas appellate courts will consider a challenge to the waiver of a right to a jury trial for the first time on appeal to prevent the denial of a fundamental right. State v. Williams ……………………… 346

Constitutional Issues—Appellate Review. Appellate courts generally avoid making unnecessary constitutional decisions. Thus, when there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge. State v. Smith ……………………………….…. 312

Documentary Evidence or Stipulations—Appellate Review. When the controlling facts are based on written or documentary evidence or stipulations, the appellate court has as good an opportunity to examine and consider the evidence as did the court below. State v. Smith ………….…. 312

Driver's License Suspension—Substantial Competent Evidence Stand- ard—Appellate Review. When reviewing a driver's license suspension, an appellate court applies the substantial competent evidence standard. To uphold an agency's action it must be supported by evidence that is substantial when viewed in light of the record as a whole. Molina v. Kansas Dept. of Revenue ………………………….……….. 554

Grant of Motion to Dismiss—Appellate Review. Whether a district court erred by granting a motion to dismiss is a question of law subject to unlimited review. The appellate court will view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Florez v. Ginsberg …………………………………………………….. 207

Imposition of Discovery Sanction—Appellate Review. An appellate court will uphold the imposition of a discovery sanction in a criminal case—including dismissal—unless that action constitutes an abuse of discretion. State v. Auman ……………………………………………..…...... …… 439

Mootness Doctrine—Court Recognized Exceptions. An appellate court should consider a case that would otherwise be moot if it (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition. State v. Lamb ………………….…………. 633*

— Exceptions. Generally, Kansas appellate courts do not decide moot questions or render advisory opinions. The mootness doctrine is a court policy, which recognizes that the role of the court is to determine real controversies relative to the legal rights of persons and properties which are actually

XII SUBJECT INDEX 57 KAN. APP. 2d

PAGE

involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive. We do recognize an exception when the question is capable of repetition and is of public interest even though the case has become moot for the present parties. State v. Chardon ...... 177

Motion to Suppress—Appellate Review. If the parties do not dispute the facts of the case, the question of suppression becomes exclusively a matter of law over which the court exercises unlimited review. State v. Arrizabalaga ………………………………….……………....…… 79

— Bifurcated Standard. When reviewing a district court's decision on a motion to suppress, we apply a bifurcated standard. First, we review the district court's factual findings to determine whether those findings are supported by substantial competent evidence. Second, we then review the district court's ultimate legal conclusion drawn from the facts de novo. State v. Arrizabalaga …………………………………….………….….….. 79

Negative Finding by District Court—Appellate Review. A conclusion that a party did not meet his or her burden of proof is a negative finding. When the district court makes a negative finding in denying a petition for habeas corpus, its ruling will not be disturbed on review absent a showing of an arbitrary disregard of undisputed evidence or some extrinsic influence such as bias, passion, or prejudice. Grammer v. Kansas Dept. of Corrections …………………… 533

Presiding Judge's Responsibility to Advise of Right to Jury Trial—Failure Requires Reversal and Remand. It is the district court's responsibility to advise a defendant of the nature and extent of the right to a jury trial. The responsibility to inform the defendant of his or her jury trial right rests squarely with the presiding judge. The advisement of the jury trial right must come from the court itself. A district court's failure to comply with the requirement to advise a defendant of his or her right to a jury trial on the record requires reversal and remand. State v. Williams …………………………………………...……. 346

Sentencing—Departure Sentence—No Substantial Competent Evidence to Support Mitigating Factor in This Case. Under the facts of this case, we hold that while a defendant's acceptance of responsibility may be a valid nonstatutory mitigating factor in support of a downward durational departure sentence, in this case there was no substantial competent evidence to support the factor that the defendant accepted responsibility for his crimes. Moreover, assuming there was substantial competent evidence to support this mitigating factor, the district court erred in its legal conclusion that this factor was real, substantial, and compelling such that the district court was forced by the case facts to abandon the status quo, venture beyond presumptive prison sentences, and grant probation. State v. Morley …………………………………………………………… 155

— Factual Findings Not Supported by Evidence or Do Not Establish Rea- sons for Departure—Remand to Sentencing Court. If an appellate court concludes that the sentencing court's factual findings are not supported by

57 KAN. APP. 2d SUBJECT INDEX XIII

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evidence in the record or do not establish substantial and compelling reasons for a departure, the appellate court must remand the case to the sentencing court for resentencing. K.S.A. 2018 Supp. 21-6820(f). State v. Morley ……………………………………………...…………. 155

— Mitigating Factor—Appellate Review. When the record supports a valid, articulated mitigating factor, an appellate court applies an abuse of discretion standard to determine whether the mitigating factor constituted a substantial and compelling reason to depart in the particular case. State v. Morley …………………………………………….....…….….. 155

— Standard of Review for Departure Decisions. An appellate court's standard of review for departure decisions depends on the issue presented. When we consider whether the record supports an articulated mitigating factor for a departure sentence, we review for substantial competent evidence. Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Morley ……………….……………… 155

Waiver of Right to Jury Trial—Appellate Review. When the facts of a jury trial waiver are not disputed, whether a defendant voluntarily and knowingly waived the jury trial right is a legal question subject to unlimited appellate review. State v. Williams ………………………………...…. 346

— Must Be Waived in Writing or in Open Court. A waiver of the right to a jury trial will not be presumed from a silent record. A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. State v. Williams …………………………… 346

APPELLATE PROCEDURE:

Cross Appeal—Failure to Cross-Appeal Bars Prevailing Party from Chal- lenging That Issue. The failure to cross-appeal from an adverse decision by the district court generally bars the prevailing party from challenging the lower court's ruling on that issue. State v. Daino ……………………. 653*

State's Right to Appeal Restricted by Statute. K.S.A. 22-3602 distinguishes between the appellate rights of defendants and the prosecution. While a criminal defendant has a broad right of appellate review, the State only has a limited right to appeal tightly restricted by statute. State v. McCroy ……………………………………………….……… 643*

Statutory Right to Appeal. Under Kansas law, the right to appeal is entirely statutory. Thus, appellate courts do not have discretionary power to entertain appeals from all district court orders. Rather, the contours of appellate jurisdiction are defined by statute. State v. McCroy …………………..………….. 643*

Supreme Court Precedent. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Kane ………….…....….. 522

XIV SUBJECT INDEX 57 KAN. APP. 2d

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— Court of Appeals Required to Follow Precedent—Exception. The Court of Appeals is duty-bound to follow Kansas Supreme Court precedent unless the court is convinced, based on recent decisions by the state's highest court, that a decision no longer accurately reflects Kansas law. State v. McCroy ………………………………………...……………..643*

Timely Notice of Appeal—Exceptions. Exceptions to the requirement of a timely filed notice of appeal apply only if a defendant's failure to timely appeal was caused by the deprivation of a right which is provided by law. In re I.A. ……………..…..…………………………………….……… 145

Timely Notice of Appeal in Juvenile Offender Proceeding—Governed by Kansas Code of Civil Procedure. There is no statutory justification to extend any exceptions to the requirement of a timely filed notice of appeal to a juvenile offender proceeding, which is civil in nature and governed by the Kansas Code of Civil Procedure. In re I.A. ………….……………. 145

Untimely Notice of Appeal—Dismissal of Action. Kansas appellate courts have jurisdiction only as provided by law, and an untimely notice of appeal usually leads to dismissal of an action. In re I.A. ……………………… 145

CIVIL PROCEDURE:

Claims Arising from School Environment—Case-by-Case Considera- tion by Courts. Courts must be careful not to reject all claims that arise out of a school environment under the umbrella of educational malpractice. In- stead, the specific facts of each case must be considered in light of the relevant policy concerns that drive the rejection of educational malpractice actions. Florez v. Ginsberg …………………..………………..……….... 207

Motion to Alter or Amend—Appellate Review. An appellate court reviews the district court's decision to deny a motion to alter or amend the judgment using an abuse of discretion standard. Florez v. Ginsberg ….. 207

Motion to Dismiss—When Considered as Motion for Summary Judg- ment. When a motion to dismiss relies on facts not found in the pleadings, the court must treat it as a motion for summary judgment. In re Care & Treatment of Jones …………………………….……….. 808*

Motion for Summary Judgment. A motion for summary judgment may not be granted when there is admissible evidence in the record supporting each element of the claim of the party opposing summary judgment. In re Care & Treatment of Jones ……………………………….…….. 808*

CONSTITUTIONAL LAW:

Constitutional Due Process—Protections Based on Specific Property Right or Liberty Interest at Stake. Constitutional due process is an especially elastic concept in that the protections required vary depending upon the importance of the specific property right or liberty interest at stake. State v. Gonzalez ………………………………………………..……..…. 618

57 KAN. APP. 2d SUBJECT INDEX XV

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Constitutional Protections from Unlawful Search and Seizure. The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides the same protection from unlawful government searches and seizures as the Fourth Amendment. State v. Ellis …………………………………….. 477

Due Process Claim—Question of Law—De Novo Review. When evaluating a due process claim, a determination must first be made whether a fundamental liberty or property interest is implicated. If so, the court must then determine the nature and extent of the process that is due. Whether an individual's due process rights were violated is a question of law subject to de novo review. In re J.L. ………………………………………………………...…………. 60

Due Process Requires Prosecutors to Disclose Evidence Favorable to De- fendant. Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, prosecutors have an affirmative duty to disclose evidence favorable to a defendant when the evidence is material either to guilt or to punishment. This duty exists irrespective of the good faith or bad faith of the prosecution. State v. Auman ……………………………………..….……. 477

First Amendment Right of Freedom of Speech—Prior Restraint of Content Based Speech—Presumption of Unconstitutionality. Generally, a prior restraint restricts speech in advance based on content and carries a presumption of unconstitutionality. State v. Smith ……………...... ……. 312

Fourteenth Amendment—Due Process Clause. The essential principle em- bodied in the Due Process Clause of the Fourteenth Amendment to the United States Constitution is this: The government may not deprive a person of a property right or a liberty interest without affording that person the opportunity to be heard in a meaningful way and at a meaningful time to avert a wrongful deprivation of that right or interest. State v. Gonzalez …………………….……. 618

Fourth Amendment—Not Applicable to Public Statement in Defamation Claim. The Fourth Amendment concept that persons may legitimately demand privacy in the curtilage of their homes from arbitrary interference by the government does not apply in determining whether a person made a statement publicly for purposes of a defamation claim. State v. Smith …………….……. 312

Fourth Amendment and Section 15 of Kansas Constitution Bill of Rights Protection against Unreasonable Search and Seizures. The Fourth Amend- ment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights both protect individuals against unreasonable searches and seizures. Constitutional issues may arise when a law enforcement officer stops a vehicle on a public roadway, and therefore restrains an individual's liberty, because the stop constitutes a seizure under the Fourth Amendment. State v. Arceo-Rojas ………………………………………………….…. 741*

Plea---Due Process Requires Defendant Be Notified of Direct Conse- quences of Plea. The Due Process Clause of the Fourteenth Amendment to

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the United States Constitution protects defendants in criminal cases by requiring that any plea be knowingly and voluntarily made. As part of this protection, a court considering a defendant's plea of guilty or nolo contendere must inform the defendant of the direct consequences of his or her plea. The record must affirmatively disclose that the defendant understands the potential consequences of the plea and nevertheless chooses to plead guilty or no contest. State v. Terning …………………………………….…. 791*

Right to Effective Assistance of Counsel—Defendant's Burden of Proof. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. To show a violation, the defendant must meet the two-part test set out in Strickland v. Wash- ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): that the attorney's conduct fell below an objective standard of reasonableness and that the attorney's inadequate conduct prejudiced the defendant. Baker v. State ……………………………………………………..…… 561

— Two-Part Strickland Test—Requirement of Showing of Prejudice. Prej- udice is shown if there is a reasonable probability that the proceeding's outcome would have been different had the representation been adequate. A reasonable probability is one sufficient to undermine confidence in the outcome. Baker v. State …………………………………………………… 561

Search and Seizure—Warrantless Entry Into Private Dwelling Unrea- sonable unless Exception to Warrant Requirement. Under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Con- stitution Bill of Rights, a warrantless entry into a private dwelling by law enforcement officers is considered unreasonable and invalid unless it falls within a recognized exception to the warrant requirement. State v. Fisher ……………………………………………...………..… 460

Traffic Stop—Fourth Amendment and Section 15 of Kansas Constitu- tion Bill of Rights Prohibit Unreasonable Searches and Seizures. The Fourth Amendment of the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. A routine traffic stop is a seizure under the Fourth Amendment, so it is subject to the constitutional requirement of reasonableness. To satisfy the reasonableness requirement, the scope and duration of a traffic stop and the circumstances that rendered its initiation must be strictly tied. State v. Arrizabalaga ………………….……………….……………….. 79

Violation of Protection from Stalking Order—Appellate Review. In an appeal from a criminal judgment that a person violated a protect tion from stalking order, an appellate court may determine the constitutionality of the underlying order. State v. Smith …………………….…………………. 312

CONSUMER PROTECTION ACT:

Accrual of Claim for Statute of Limitations Purposes. A Kansas Con- sumer Protection Act claim becomes actionable, triggering the limitations period, when the consumer becomes aggrieved. A consumer becomes aggrieved

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when the consumer suffers legal harm, even if he or she fails to discover or recognize the harm. Florez v. Ginsberg ……………………………………… 207

Consumer Cannot Waive or Forego Rights under Act. To the extent that a contractual provision waives a consumer's right or benefit provided by the Kan- sas Consumer Protection Act, K.S.A. 50-625(a) prevents the operation of that contractual provision. Kansas City Grill Cleaners v. BBQ Cleaner ……….. 542

Forum-Selection Clause of Contract Unenforceable under Facts of Case. Under the facts of this case, the forum-selection clause of the purchase agreement is unenforceable because it contravenes the strong public policy of our state "to protect consumers from suppliers who commit deceptive and unconscionable practices," K.S.A. 50-623(b). In particular, the forum-selection clause runs counter to the Kansas Consumer Protection Act venue statute as set forth in K.S.A. 50-638(b) and the nonwaiver or agreement "to forego rights or benefits" provision as set forth in K.S.A. 50-625(a). Kansas City Grill Cleaners v. BBQ Cleaner ……………………………… 542

Interpretation of Statute of Limitations—Appellate Review. An appellate court has unlimited review over the interpretation and application of a statute of limitations under the Kansas Consumer Protection Act. Florez v. Ginsberg ……………………………………………………….. 207

Liberal Construction of Act—Protection of Consumers From Deceptive Practices. Under K.S.A. 50-623(b), the Kansas Consumer Protection Act shall be construed liberally to promote the policy of protecting consumers from suppliers who commit deceptive and unconscionable practices. Kansas City Grill Cleaners v. BBQ Cleaner …………………………..….. 542

Venue Statute—Requirements. The Kansas Consumer Protection Act's venue statute, K.S.A. 50-638(b), provides: "Venue. Every action pursuant to this act shall be brought in the district court of any county in which there occurred an act or practice declared to be a violation of this act, or in which the defendant resides or the defendant's principal place of business is located. If the defendant is a nonresident and has no principal place of business within this state, then the nonresident defendant can be sued either in the district court of Shawnee county or in the district court of any county in which there occurred an act or practice declared to be a violation of this act." Kansas City Grill Cleaners v. BBQ Cleaner ……………………………... 542

Waiver or Forbearance Statute—Enforcement. The Kansas Consumer Pro- tection Act's waiver or forbearance statute, K.S.A. 50-625(a), provides: "Except as otherwise provided in this act, a consumer may not waive or agree to forego rights or benefits under this act." This provision applies unless a settlement is reached that is not unconscionable. K.S.A. 50-625(c). Kansas City Grill Cleaners v. BBQ Cleaner …………………………...….. 542

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CONTEMPT:

Contempt Finding for Failure to Testify in a Case—Issue Subject to Repetition. A contempt finding for failure to testify in a case that is subsequently dismissed without prejudice is an issue subject to repetition in light of the fact that the case may be refiled and the witness again required to testify. State v. Lamb ……………………...... ……………………….. 633*

CONTRACTS:

Forum-Selection Clause—Appellate Review. Kansas appellate courts exercise unlimited review over the interpretation and legal effect of a forum-selection clause. Kansas City Grill Cleaners v. BBQ Cleaner …………....……. 542

— Enforcement of Provision. A forum-selection clause is generally valid and enforceable. However, the clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. Kansas City Grill Cleaners v. BBQ Cleaner ………………………...……. 542

— Enforcement of Provision—Requirements. A forum-selection clause is unreasonable if: (1) it was induced by fraud or duress; (2) there is no reasonable relationship between the selected forum and the complained of transaction; (3) the contractually selected forum is so unfair and inconvenient that it, for all practical purposes, deprives the plaintiff of a remedy or of its day in court; or (4) enforcement would contravene a strong public policy of the state where the action has otherwise been properly filed. Kansas City Grill Cleaners v. BBQ Cleaner ………………………..….…. 542

Kansas Fairness in Private Construction Contract Act—Attorney Fees and Costs Awarded to Prevailing Party. In any action to enforce the rights created by the Kansas Fairness in Private Construction Contract Act, the court shall award costs and reasonable attorney fees to the prevailing party. K.S.A. 16- 1806. Drywall Systems, Inc. v. A. Arnold of Kansas City …………………. 263

— Goal Is Prompt Payment of Undisputed Amounts. The goal of the Kansas Fairness in Private Construction Contract Act, K.S.A. 16-1801 et seq., is to en- courage prompt payments of undisputed amounts as they come due under the contracts of the parties. Drywall Systems, Inc. v. A. Arnold of Kansas City ... 263

— Provides Incentives for Prompt Payments by Owners, Contractors, and Subcontractors. The Kansas Fairness in Private Construction Contract Act provides incentives to the three tiers of a construction contract—owners—contractors—subcontractors. Drywall Systems, Inc. v. A. Arnold of Kansas City ….. 263

Written Contracts—Interpretation—Appellate Review. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Kansas City Grill Cleaners v. BBQ Cleaner …..... 542

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COURTS:

Dismissal of Case—Failure to Abide by Discovery Rules Prevents Fair Trial. Because dismissal is a drastic remedy, Kansas courts have histori- cally observed that it should be used only in extreme circumstances, when a lesser sanction would not accomplish the desired objective. That said, Kansas courts have long recognized that a court may dismiss a case when failure to abide by the discovery rules prevents a fair trial. State v. Auman …….…. 439

Moot Issue—Dismissal of Appeal. A case is not moot where it may have adverse legal consequences in the future. Given the finality of a mootness determination, an appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose. Burch v. Howard …………………………………………………...…… 860*

Mootness Doctrine—Stems from Kansas Case-or-Controversy Require- ment. Kansas appellate courts do not decide moot questions. The mootness doctrine stems from Kansas' case-or-controversy requirement. A justiciable controversy involves definite and concrete issues—adverse legal interests that are immediate, real, and amenable to conclusive relief. A case becomes moot when the controversy between the parties has ended and any judgment of the court would be ineffective. Burch v. Howard ……………………………. 860*

Motion for New Trial Regarding Juror Misconduct—Appellate Review. A district court's discretion in ruling on a motion for a new trial is particularly important when there is conflicting evidence regarding juror misconduct. Appel- late courts do not reweigh conflicting evidence and do not reassess jurors' credibility in responding to questions during voir dire. King v. Casey's General Store ……………………………….…………... 392

Motion to Withdraw Plea—Determination Whether Plea Knowingly Made. Kansas law vests district courts with the task of evaluating the defendant's arguments and testimony—and weighing those arguments against the unique facts and circumstances of each case—to determine whether a plea was knowingly and understandingly made. State v. Terning ………………….. 791*

Plea Hearing—Court's Duty to Inform Defendant of Maximum Penalty. K.S.A. 2018 Supp. 22-3210(a)(2) requires a court at a plea hearing to inform the defendant of the "maximum penalty provided by law which may be imposed," not the exact sentence that will be imposed at sentencing. State v. Terning ……………………………………………………...….. 791*

CREDITORS AND DEBTORS:

Fraudulent Transfer Claim—Savings Clause Permits Creditor to Proceed on Claim of Actual Intent. A fraudulent transfer claim based on actual intent may still survive the four-year limitation period because K.S.A. 33-209(a) includes a savings clause. The savings clause permits a creditor to proceed on a claim of actual intent when the creditor brings the claim within one year after the creditor discovered or could reasonably have discovered the transfer.

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Foxfield Villa Assocs. v. Robben …..……………………………….…….. 122

Fraudulent Transfer Claim Based on Lack of Reasonable Value Subject to Four-Year Statute of Limitations. A fraudulent transfer claim based on a lack of reasonable value is subject to the limitations set out in K.S.A. 33-209(b), not K.S.A. 33-209(a). Under K.S.A. 33-209(b), the creditor must bring a claim within four years of the transfer or the creditor's claims are extin- guished, even if the transfer was later discovered or could have reasonably been discovered. Foxfield Villa Assocs. v. Robben ………………….... 122

Uniform Fraudulent Transfer Act—Creditor May Recover for Fraud- ulent Transfer. Under K.S.A. 33-204(a)(1), a creditor may recover for a fraudulent transfer of property when the debtor transfers the property with actual intent to hinder, delay, or defraud any creditor of the debtor. Foxfield Villa Assocs. v. Robben …………………………………..….. 122

CRIMINAL LAW:

2019 Amendment to K.S.A. 22-3504—State v. Dickey Not Change in Law. State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), does not constitute a change in the law as contemplated by the 2019 statutory amendments to K.S.A. 22-3504. State v. Gales ……………………….….….. 325

Attempted First-degree Murder—Elements of Crime. To prove attempted first-degree murder, the State must prove the defendant (1) attempted to commit a premeditated murder of a human being; (2) took an overt act toward perpetrating that murder; and (3) failed to complete the crime. State v. Kane ……………………………………………...……. 522

Breach of Privacy—Concealment of Person and Concealment of Re- cording Devices Violates Statute. A person violates K.S.A. 2019 Supp. 21-6101(a)(6) if the person independently conceals any of the recording devices listed in the statute or if the person conceals him or herself while using one of the listed recording devices to secretly record a person as prohibited by the statute. State v. Hayes …………………………………………. 895*

— Determination of Reasonable Expectation of Privacy. To determine whether someone has a reasonable expectation of privacy under K.S.A. 2019 Supp. 21-6101(a)(6) we consider (1) whether the person subjectively believes he or she has an expectation of privacy in the situation and (2) whether a reasonable person in the same or similar circumstances would have an expectation of privacy. The answers to these questions are highly fact specific. State v. Hayes ………………………………….………. 895*

Competency of Defendant—Due Process Requirements. Competency for due process purposes entails the capacity to understand the nature and object of the proceedings, to consult with a lawyer, and to assist in presenting a defense. State v. Gonzalez ………………………………..………..….. 618

Compulsion Defense—Proffer of Evidence to Support Defense on Ap- peal. To present a compulsion defense, just like any other defense, there

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must be evidence to support it. And if the district court refuses to allow the introduction of a litigant's evidence related to the defense, the litigant must make a proffer of the evidence to preserve the issue on appeal. State v. Lamb …………………………………………………………. 633*

Constitutional Right to Speedy and Public Trial—Purpose of K.S.A. 2018 Supp. 22-3402. The Sixth Amendment to the United States Constitu- tion and § 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a speedy and public trial. The purpose of K.S.A. 2018 Supp. 22-3402 is to implement the accused's constitutional right to a speedy trial. State v. Hammerschmidt …………………………………………. 449

Defendant's Right to Speedy Trial—Statutory Limitations and Rem- edy. K.S.A. 2018 Supp. 22-3402(b) requires the accused to be brought to trial within 180 days after his or her arraignment. The remedy for the State's failure to bring the accused to trial within the required time is dismissal of the pending charges. The speedy trial clock begins to run at the defendant's arraignment. State v. Hammerschmidt …………………………..…….. 449

Determination of Sanctions for Discovery Violations —Court's Consid- erations. When determining which sanction to impose for discovery violations in a criminal case, a court should take into account the reasons why disclosure was not made; the extent of the prejudice, if any, to the opposing party; the feasibility of rectifying that prejudice by a continuance; and any other relevant circumstances. State v. Auman ………………………… 439

Determination Whether Statutes Are Punitive as to Juvenile Of- fender—Intent-Effects Test. To determine whether a legislature's statutory scheme is punitive as applied to a juvenile offender we use the "intent- effects" test adopted in State v. Petersen-Beard, 304 Kan. 192, 194-95, 377 P.3d 1127 (2016). State v. N.R. …………………………….…………. 298 . Exculpatory Evidence—State Fails to Disclose Such Evidence—Deter- mination of Appropriate Sanctions. When a district court learns that the State has failed to disclose evidence favorable to the defendant, the court may impose a range of sanctions, including granting continuances, restrict- ing the use of evidence, and entering any other order the court "deems just under the circumstances." K.S.A. 2018 Supp. 22-3212(i). By allowing district courts to enter such orders as they deem "just," the Kansas Legislature has afforded courts discretion to determine the appropriate sanction in a given case. State v. Auman …………………………………………….. 439

Illegal Sentence—Appellate Review. Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Henderson …...………………………………….……………… 17

Illegal Sentence under K.S.A. 2018 Supp. 22-3504. A sentence is illegal under K.S.A. 2018 Supp. 22-3504 when: (1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable statutory provisions, either in character or punishment; or (3) it is ambiguous with respect to the time and manner in which it is to be served. State v. Schulze ……….…. 71

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— Appellate Review. Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Schulze …………………………… 71

Kansas Offender Registration Act—Act Imposes Duty to Register. The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., itself, rather than a court order, imposes the duty to register upon sex offenders. State v. N.R. ………………………………………………….……...… 298

— Lifetime Registration for Juvenile Sex Offenders Not Part of Sen- tence. Lifetime registration for juvenile sex offenders mandated by the Kan- sas Offender Registration Act, K.S.A. 22-4901 et seq., is not part of a juvenile offender's sentence. State v. N.R. ……………………….….…...… 298

— Lifetime Registration for Juvenile Sex Offenders Not Punishment under Kansas Constitution Bill of Rights. Lifetime registration for juvenile sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., does not constitute punishment for purposes of applying section 9 of the Kansas Constitution Bill of Rights. State v. N.R. …………………………………………………….…...… 298

— Lifetime Registration for Juvenile Sex Offenders Not Punishment under United States Constitution. Lifetime registration for juvenile sex offenders mandated by the Kansas Offender Registration Act, K.S.A. 22- 4901 et seq., does not constitute punishment for purposes of applying provisions of the United States Constitution. State v. N.R. ………..….….. 298

Kidnapping—Statutory Definition. K.S.A. 2018 Supp. 21-5408(a)(2) defines kidnapping as "the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . to facilitate flight or the commission of any crime." State v. Kane ………... 522

— Taking to Facilitate Another Crime—Movement Element. If a taking or confinement is alleged to have been done to facilitate the commission of another crime, to prove kidnapping, evidence must show that the resulting movement or confinement (1) must not be slight, inconsequential, and merely incidental to the other crime; (2) must not be of the kind inherent in the nature of the other crime; and (3) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. State v. Kane ………………………………………………….…..…… 522

Kidnapping Elements—Taking or Confinement—Nature of Act. A court may find a taking or confinement has independent significance from another crime for purposes of the kidnapping statute not only when an act actually makes a crime substantially easier to commit but also when the act has the potential to do so, even if the defendant never received the anticipated benefit. It is the nature of the act, not its result, that is legally important. State v. Kane …………………………………………….…… 522

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Law Enforcement Officers' Duty to Disclose Material Evidence—Knowledge of Evidence Imputed to the State. The responsibility to provide material evidence is not limited to prosecutors. Rather, because law enforcement officers act with state authority, law enforcement's knowledge of evidence is imputed to the State. The State therefore runs afoul of this principle when a prosecutor with- holds material evidence that is not known to the prosecutor but is known to law enforcement. State v. Auman ……………………………….……... 439

Motion to Correct Illegal Sentence—Appellate Court's Jurisdiction from K.S.A. 22-3602. K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court's jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602. State v. McCroy …………….………………………………………...…. 643*

Motion to Withdraw Plea—Court Can Deny if Substantial Compliance with K.S.A. 22-3210. The failure to strictly comply with K.S.A. 22-3210 does not warrant withdrawal of a plea if, upon review of the entire record, it can be determined that the plea was knowingly and voluntarily made. A court should deny a motion to withdraw a plea, even when faced with an error in the potential sentence discussed at the plea hearing, when the record discloses the plea hearing substantially complied with the requirements of K.S.A. 22-3210. State v. Terning ………………………………….…. 791*

Motion to Withdraw Plea—District Court's Discretionary Decision— Appellate Review. The decision to deny a motion to withdraw a plea lies within the discretion of the district court. On appeal, a person challenging a district court's denial must establish that the court abused its discretion in reaching that decision. State v. Terning ………………………………. 791*

Plea—Court Must Inform Defendant of Consequences of Plea. Under K.S.A. 22-3210, a court considering a defendant's plea must determine— and the record must affirmatively disclose—that the defendant enters his or her plea voluntarily and with an understanding of its consequences. K.S.A. 2018 Supp. 22-3210(a)(2) thus requires a court to inform the defendant of the consequences of the plea, including the specific sentencing guidelines level, and the maximum penalty provided by law which may be imposed upon acceptance of such plea. State v. Terning …………………....…. 791*

— Postrelease Supervision Is Direct Consequence of Plea. Postrelease supervision is a direct consequence of a plea because it is definite, automatic, and immediately follows a period of imprisonment. State v. Terning ………………………………………………...…….. 791*

Plea Hearing—No Abuse of Discretion in Facts of This Case—Defend- ant's Plea Knowingly Made. Under the unique facts of this case, the district court did not abuse its discretion in finding the defendant failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though the court did not strictly comply with K.S.A. 22-3210 at the plea hearing, the

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record supports the district court's finding that the defendant's plea was knowingly and understandingly made. State v. Terning ……………... 791*

Possession of Tool or Device to Remove Theft Detection Device—Bur- den of Proof on State to Specify Tool. Viewing all the evidence in a light most favorable to the State, no rational fact-finder could have found defendant guilty of possessing a tool or device designed to allow the removal of any theft detection device. Without evidence of what tool defendant may have used, it could not meet its burden of proof regarding the intentional design element. Defendant's motion for judgment of acquittal should have been granted. State v. Justice-Puett ………………………….……..…. 227

Postsentence Motion to Withdraw Plea—Factors for Court to Con- sider. In determining whether a defendant has established manifest injustice in a postsentence motion to withdraw a plea, courts consider a number of factors, including (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Terning ……………………………………. 791*

— Withdrawal to Correct Manifest Injustice. When a defendant moves to withdraw a plea after sentencing, a court may only permit withdrawal to correct manifest injustice. Manifest injustice is something obviously unfair or shocking to the conscience. State v. Terning ………………………. 791*

Premeditation—Definition. Premeditation is the process of thinking about a proposed killing before engaging in homicidal conduct. Premedita- tion requires some opportunity for reflection or deliberation—to have thought the matter over beforehand—though an act need not have been planned beforehand to be premeditated. State v. Kane ………..…….... 522

— Proof by Circumstantial Evidence. Premeditation may be proved by circumstantial evidence. Fact-finders and courts called on to evaluate premeditation circumstantially consider, among other matters, (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. Not all of these considerations are relevant in every instance, and some carry more weight than others under the facts of a particular case. State v. Kane ……….….…….. 522

Probation—Random Drug and Alcohol Testing—Exempt from Fourth Amendment's General Warrant Requirement. K.S.A. 2018 Supp. 21- 6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, is exempt from the Fourth Amend- ment's general warrant requirement because (1) the special needs of the probation system make the warrant and probable cause requirement impracti- cable, and (2) the primary purpose of random drug and alcohol testing for

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probationers is distinguishable from the State's general interest in crime control. State v. Hinnenkamp …………………….…………..…………... 1

— — Weighing Probation's Expectation of Privacy against State's In- terests. When we weigh a Kansas probationer's diminished expectation of privacy against the State's interests in promoting rehabilitation and probation compliance, and we consider the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing. State v. Hinnenkamp ….………………………………………………….. 1

Protection from Stalking Order—Improper Prior Restraint of Consti- tutional Right in This Case. Under the circumstances of this case, the protection from stalking order, as applied solely to speech which does not subject a person to a reasonable fear of physical harm, is an improper prior restraint of the appellant's constitutional right to freedom of speech. State v. Smith …………………………………………………….……. 312

Required Statutory Belief for Self-defense—Subjective and Objective Components. To act in self-defense under K.S.A. 2018 Supp. 21-5222, a person must "reasonably believe" both a physical threat exists and the degree of force he or she uses in response to be necessary under the circumstances. The required statutory belief has subjective and objective components, meaning, first, the person must honestly believe he or she is in immediate danger necessitating the use of that degree of force against an aggressor (subjective component) and, second, an objectively reasonable person would also view the circumstances that way (objective component). Estate of Randolph v. City of Wichita ………………………………… 686*

Restitution—Order of Restitution Allows Probation to Continue until Paid. If a defendant is ordered to pay full or partial restitution, K.S.A. 2019 Supp. 21-6608(c)(7) specifically allows for probation to be continued indefinitely as long as the amount of restitution ordered has not been paid. State v. Henry …………………… 846*

Revocation of Probation—Court's Authority to Order Competency Eval- uation. A district court has the inherent authority to order a competency evaluation as a means of extending constitutional due process to a probationer facing revocation. State v. Gonzalez …………...…………………...… 618

Revocation of Probation of Convicted Felon—Competency Requirement at Time of Revocation Hearing. The State may not revoke the probation of a convicted felon who is not mentally competent at the time of the revocation hearing. State v. Gonzalez …………...………………...……..…… 618

Right to Jury Trial—Constitutional and Statutory Right. A criminal defendant's right to a jury trial is guaranteed by the United States and Kansas Constitutions and by statute. State v. Williams ………………………... 346

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Right to Speedy Trial—State Has Burden to Ensure Speedy Trial. The State bears the responsibility for ensuring that the accused is provided with a speedy trial in accordance with K.S.A. 2018 Supp. 22-3402. The defendant is not required to take any affirmative action to ensure that his or her right to a speedy trial is observed. Yet, if a delay is caused by a defendant's application or fault, including the filing of a motion to suppress, that delay pauses the running of the speedy trial clock. State v. Hammerschmidt ………………………………...…………….. 449

Sentencing—2019 Amendment to K.S.A. 22-3504 Procedural in Na- ture—Retroactive Application. The 2019 statutory amendments to K.S.A. 22-3504 are procedural in nature and shall be construed and applied retroactively. State v. Gales ………………………………………………... 325

— Acceptance of Responsibility by Defendant—Nonstatutory Mitigating Factor. A defendant's acceptance of responsibility may be a valid nonstatutory mitigating factor in support of a departure sentence. State v. Morley ……….…...... ……. 155

— Application of 2015 Amendment to K.S.A. 21-6811(e)(3)—Retroac- tive Application. The 2015 amendment to K.S.A. 21-6811(e)(3), as set forth in House Bill 2053, requires the court to compare prior out-of-state crimes to the Kansas Criminal Code in effect on the date the current crime of conviction was committed. The Legislature clearly stated its intent that the amendment set forth in House Bill 2053 is procedural in nature and shall be applied retroactively. State v. Gales ……………………………...... 325

— Calculation of Criminal History Score. The plain language of K.S.A. 2018 Supp. 21-6810(d)(10) excludes from criminal history calculations prior convictions that enhance the severity level of the present crime of conviction, elevate the classification of the present crime of conviction from a misdemeanor to a felony, or are elements of the present crime of conviction. State v. Wilmore …………………………………………….....………. 469

— Change in Law Following Pronouncement of Sentence. A sentence is not an illegal sentence because of a change in the law that occurs after the sentence is pronounced. State v. Gales ………………………..……….. 325

— Changes in Law Cannot Transfer Legal Sentence into Illegal Sen- tence. While true changes in the law cannot transform a once legal sentence into an illegal sentence, there might be developments in the law that may shine new light on the original question of whether the sentence was illegal when pronounced. State v. Gales ……………………………..……..… 325

— Classification of Prior Out-of-State Crime as Person or Nonper- son—Application of K.S.A. 2018 Supp. 21-6811(e)(3). Under K.S.A. 2018 Supp. 21-6811(e)(3), the State of Kansas shall classify a prior out-of- state crime as person or nonperson for purposes of calculating criminal history. In classifying a prior out-of-state crime as person or nonperson, comparable offenses under the Kansas Criminal Code in effect on the date the current crime of conviction was committed shall be referred to. If the State

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of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state crime shall be clas- sified as a nonperson crime. State v. Gales ……………………...……. 325

— Criminal History—State Cannot Later Challenge if Failed to Object before Court. The State cannot later challenge the factual basis for a defendant's criminal history score when it failed to object to it before the district court. State v. Schulze ……………………………………………... 71

— — State Prohibited from Later Amending Severity Level. If the State fails to find a conviction or convictions in a defendant's criminal history, the State is prohibited from later amending, and ultimately increasing, the severity level of a defendant's criminal history for the crime or crimes at issue. State v. Schulze ……...... 71

— — State's Burden of Proof. The State has the burden to prove the defendant's criminal history. State v. Schulze ……..……………….……... 71

— Definition of Illegal Sentence Changed Based on State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). The Kansas Supreme Court's decision in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), was a change in the law within the meaning of the definition of an illegal sentence in K.S.A. 2018 Supp. 22-3504(3). So if a defendant's sentence was legal when it was pronounced, the sentence does not become illegal based on the holding in Wetrich. State v. Henderson …...……………………………………….. 17

— Departure Sentence—Appellate Review—Analysis. Whether the factors relied upon by the sentencing court constitute substantial and compelling reasons for departure from the sentencing guidelines is a question of law with no deference given to the sentencing court. The term "substantial" refers to something that is real, not imagined; something with substance and not ephemeral. The term "compelling" implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. The question is whether the departure factors, as a whole, are substantial and compelling reasons for imposing a departure sentence in light of the offense of conviction, the defendant's criminal history, and the purposes of the sentencing guidelines. The analysis of this question is twofold: first, whether a particular reason given by the sentencing court is a valid departure factor and, second, whether the reasons, as a whole, are substantial and compelling reasons for departure in a given case. State v. Morley ……. 155

— — — Determination on Case-by-Case Basis. Reasons which may in one case justify a departure, may not in all cases justify a departure. Rather, the inquiry must evaluate the crime and the departure factors as a whole to determine whether departure in a particular case is justified. It is a question of what weight to give each reason stated and what weight to give the reasons as a whole in light of the offense of conviction and the defendant's criminal history. The inquiry also considers the purposes and principles of the Kansas Sentencing Guidelines. State v. Morley ……………..……. 155

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— — Court Must State on the Record the Substantial and Compelling Reasons for Departure. If a sentencing court determines that a departure sentence is warranted, it must state on the record at the time of sentencing the substantial and compelling reasons for the departure and make findings of fact regarding those mitigating factors. K.S.A. 2018 Supp. 21-6815(a); K.S.A. 2018 Supp. 21-6817(a)(4). State v. Morley …………………… 155

— Determination of Prejudice under Strickland—Failure to Present Mitigation for Sentencing. To determine Strickland prejudice in cases alleging a failure to present mitigation for purposes of sentencing, the court must reweigh the evidence in aggravation against the totality of available mitigating evidence. Baker v. State ……………..………………..….… 561

— Downward Departure Sentence—Substantial and Compelling Miti- gating Factor. A substantial and compelling reason to depart downward from a presumptive sentence is a mitigating factor. Although K.S.A. 2018 Supp. 21-6815(c)(1)(A)-(E) provides a list of potential mitigating factors, the list is nonexclusive, and a sentencing court may rely on nonstatutory factors to depart if they are consistent with the principles underlying the Kansas Sentencing Guidelines Act. State v. Morley ……………….….. 155

— Effect of State v. Wetrich on Classifying Prior Out-of-State Crimes. In State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), an opinion issued by the Kansas Supreme Court on March 9, 2018, the court held that in order to constitute a comparable offense under K.S.A. 2017 Supp. 21-6811(e), a prior out-of-state crime must have identical or narrower elements than the Kansas offense to which it is being compared. State v. Gales ……….… 325

— Failure to Show Prejudice in This Case. In this case, where the aggravating circumstances greatly outweigh the mitigating circumstances, defendant fails to show the attorney's representation prejudiced him, even though the defendant's attorney offered no mitigating evidence at sentencing. Baker v. State ………………………………………………..….… 561

— House Bill 2053 Not Change in Law Contemplated by 2019 Amend- ment to K.S.A. 22-3504(c). House Bill 2053 does not constitute a change in the law as contemplated by K.S.A. 22-3504(c), as amended by L. 2019, ch. 59, § 15. State v. Gales ………………………………………...…… 325

— Imposition of Presumptive Sentence—Exception for Substantial and Compelling Reasons to Depart. A sentencing court is required to impose the presumptive sentence provided by the Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6815(a), unless the court finds substantial and compelling reasons to impose a departure sentence. State v. Morley …. 155

— Law in Effect When Sentence Pronounced Controls Legality of Sen- tence. Under K.S.A. 2018 Supp. 22-3504, the legality of a sentence is controlled by the law in effect when the sentenced was pronounced. Thus, a sentence that was legal when pronounced does not become illegal if the law later changes. State v. Henderson ………………………………………. 17

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— Motion to Correct Illegal Sentence. K.S.A. 22-3504 is not an appellate jurisdiction statute; it is contained in Article 35 of our code of criminal procedure, which governs posttrial motions. State v. McCroy ……………... 643*

— — Either Party Can Raise at Any Time. Kansas courts have interpreted K.S.A. 22-3504 to allow either party to challenge the legality of a sentence at any time, including for the first time on appeal, because the legality of a sentence (1) can be challenged at any time and (2) is a question of law subject to de novo review. State v. McCroy …………………………….... 643*

— Restitution—Court Must Establish Payment Plan. K.S.A. 2018 Supp. 21-6604(b)(2) refers to a "plan established by the court for payment of restitution." That language does not merely refer to a court's order of an amount of restitution but shows legislative intent that the court establish a payment plan when it orders restitution. State v. Roberts …………... 836*

— — Court Shall Order Restitution unless Plan Unworkable. K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable. State v. Henry ……………………………………………………….... 846*

— — Defendant's Burden of Proof if Plan Unworkable. Restitution is the rule and a finding that restitution is unworkable is the exception. The defendant bears the burden of coming forward with evidence of compelling circumstances that render the restitution plan unworkable. State v. Henry ………………………………………………………... 846*

— — Workability of Restitution Plan Evaluated on Case-by-Case Ba- sis. K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." Courts are to evaluate the workability of a restitution plan on a case-by-case basis. Some of the factors relevant to the court's inquiry will be the defendant's income, present and future earning capacity, living expenses, debts and financial obligations, and dependents. In some circumstances, the amount of time it will take a defendant to pay off a restitution order will also be relevant, especially if the defendant is subject to probation until the restitution is paid in full. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty. State v. Henry …………………….…. 846*

— Revocation of Probation—Dispositional Departure Exception. K.S.A. 2017 Supp. 22-3716(c)(9)(B) permits a district court to revoke a defendant's probation without having imposed a graduated sanction if probation was originally granted as the result of a dispositional departure. This dispositional departure exception, enacted on July 1, 2017, applies to probation violations which occur after July 1, 2013, even when those violations occurred before the dispositional departure exception took effect. State v. Tearney ………………………………………………..………. 601

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— Stalking Statute—Purpose. The purpose of our stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The stalking statute expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander. State v. Smith …..………….… 312

— State v. Wetrich is Change in the Law—No Retroactive Application. The rule announced in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), is a change in the law and shall not be construed or applied retroactively. State v. Gales ………………………………………..………………… 325

— Statutory Amendment Defining "Change in the Law." The 2019 statutory amendments to K.S.A. 22-3504 define a "change in the law" as a statutory change or an opinion by an appellate court of the State of Kansas, unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction. State v. Gales ……………..…………...…. 325

— Statutory Factors for Consideration of Departure Sentence. A statute, K.S.A. 2018 Supp. 21-6815, provides lists of mitigating and aggravating circumstances the sentencing court may consider in deciding whether to depart. Mitigating factors support downward departures; aggravating factors support upward departures. Although each list is nonexclusive, if something is listed as a factor on one of the two lists, the absence of that factor on the counterpart list means that it may not be the basis for a departure in that departure direction. State v. Gibson ……………………….……… 610

— — Because less-than-typical harm is in the list of mitigating factors but greater-than-typical harm is not included in the list of aggravating factors, greater-than-typical harm may not be the basis for an upward-departure sentence. State v. Gibson ……………………………………………..…… 610

— Violation of Probation—Sanctions. If the court makes a finding that the offender has committed one or more violations of the release conditions of the probation, the court may impose confinement in a county jail not to exceed 60 days upon each such finding. K.S.A. 2018 Supp. 22-3716(c)(11). Such confinement is separate and distinct from the violation sanctions provided in K.S.A. 2018 Supp. 22-3716(c)(1)(B), (c)(1)(C), (c)(1)(D), and (c)(1)(E) and shall not be imposed at the same time as any such violation sanction. State v. Chardon ………………………………….…………. 177

Sentencing Guidelines Used for Consistency. Kansas uses sentencing guidelines to help make the sentences given throughout the state consistent. The sentencing court must impose the presumptive sentence unless the judge finds substantial and compelling reasons to impose a departure sentence. State v. Gibson ……………………………………………....….. 610

Series of Larcenous Acts May Constitute Single Larceny—Require- ments. A series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the

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performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme. State v. Henry ………….… 846*

Single Larceny Doctrine—Multiple Instances of Misdemeanor or Felony Takings. The single larceny doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony. State v. Henry …………………………………………...………. 846*

— Rule of Evidence. The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme. State v. Henry ……………………………..………… 846*

— Two Elements. The two key elements of the single larceny doctrine are: (1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan and (2) whether the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury. State v. Henry ………………………….…..…… 846*

Speedy Trial Right of Defendant—Judicial Delay Cannot Be Counted against Defendant in Computing Speedy Trial Period. For speedy trial purposes, the time chargeable to the defendant begins on the date the defendant's motion is filed, but the defendant can only be charged with the reasonable amount of time the district court has the motion under advisement. Judicial pro- crastination cannot be attributed to the defendant as any party filing a motion has a right to assume it will be acted upon expeditiously after submission. State v. Hammerschmidt ……………...... …. 449

— Statutory Limitations. K.S.A. 2018 Supp. 22-3402(g) bars dismissal of a case on statutory speedy trial grounds when a delay is initially attributed to the defendant but is subsequently charged to the State for any reason, unless not considering the delay would result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to the delay. State v. Hammerschmidt …………………………………………………. 449

Waiver of Right to Jury Trial—Appellate Review. When the facts of a jury trial waiver are not disputed, whether a defendant voluntarily and knowingly waived the jury trial right is a legal question subject to unlimited appellate review. State v. Williams ………………………..………...………………... 346

DIVORCE:

Armed Forces Survivor Benefit Plan—Retirement Annuity to Former Spouse—Election by Spouse—Time Period for Appeal. A military retiree can provide an annuity for a spouse, payable in the event of the service member's death, under what Congress has named the Survivor Benefit Plan. In some cases, upon a divorce, the divorce court can order that the retiree elect the spousal annuity. If such an order is entered and the retiree does not file paperwork to make that election, the spouse can file the paperwork and the service member is

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deemed to have made the election. To have a deemed election, the spouse must file the required paperwork within one year of the court order, but that time period doesn't begin to run until the time to appeal has run or, if an appeal is filed, the appeal has concluded. In re Marriage of Thrailkill ……………….…. 244

EMPLOYER AND EMPLOYEE:

Going and Coming Rule—Application to Third-Party Tort Liability Claims. The going and coming rule is applicable to third-party tort liability claims as part of the calculus of whether an employee is acting within the scope of his or her employment. Long v. Houser …….………………. 675*

— Risks of Driving Not Related to Employment. The going and coming rule instructs that when an employee is driving to or from work, he or she is subjected only to the same risks or hazards that the public faces while driving. The risks therefore are not causally related to the employment. Long v. Houser …….…………………………………………………. 675*

State Legislators Not Within Scope of Their Employment When Driv- ing Home. State legislators are generally not acting within the scope of their employment when they drive home from Topeka at the end of the legislative session, even though the state reimburses them for their travel. Long v. Houser …….…………………………………………………. 675*

EVIDENCE:

Exculpatory Evidence—Materiality Test. Evidence is materially exculpatory if it would raise a doubt about the defendant's guilt. The United States Constitution requires, at a minimum, that such evidence be provided to the defendant in a criminal case for his or her investigation and possible defense. State v. Auman …………………………………..…………...…. 439

HABEAS CORPUS:

Civil Rights Retaliation Action under K.S.A. 60-1501—Burden-Shift- ing Framework. Courts employ a burden-shifting framework in civil- rights retaliation actions under K.S.A. 60-1501. First, a petitioner must demonstrate as an initial matter that (1) he or she was engaged in a constitutionally protected activity; (2) the prison officials' actions caused the petitioner to suffer an injury sufficient to chill a person of ordinary firmness from continuing to engage in that activity; and (3) the officials' adverse action was substantially motivated by the petitioner's exercise of a constitutionally protected right. It is only when a petitioner succeeds in making this initial showing that the burden shifts to the prison officials to provide a substantial, legitimate need for their actions. Then the ultimate burden of persuasion lies with the petitioner to prove—despite the reasons given by the officials—that the petitioner's constitutionally protected conduct actually caused the adverse action. Grammer v. Kansas Dept. of Corrections ……………….…………… 533

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District Court's Decision on K.S.A. 60-1501 Petition—Appellate Re- view. The deference appellate courts employ when reviewing a district court's decision on a K.S.A. 60-1501 petition turns on the contours of the arguments presented and the nature of the decision below. When a petitioner challenges a district court's factual findings, an appellate court will uphold those findings if they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate courts exercise unlimited review over—that is, they give no deference to—a district court's legal conclusions. Grammer v. Kansas Dept. of Corrections ………………..…………... 533

K.S.A. 60-1501—Petition for Prisoner to Allege Intolerable Conduct or Mistreatment. A petition filed under K.S.A. 60-1501 must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Burch v. Howard ………………………………………………… 860*

K.S.A. 60-1501 Petition—Procedure for Prisoner to Challenge Con- finement. A petition under K.S.A. 60-1501 is a procedural means through which a prisoner may challenge the mode or conditions of his or her confinement, including administrative actions of the penal institution. To state a claim for relief, a petition must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Grammer v. Kansas Dept. of Corrections ………………….....……… 533

— Timely Filing with District Court—When Remedy Final. As a matter of first impression, an inmate's timely attempt to exhaust administrative remedies remains pending and does not become final for purposes of calculating the 30-day deadline for filing a K.S.A. 60-1501 petition with the district court, until the inmate receives actual notice of the final administrative decision. Jamerson v. Schnurr ………………………………………………..…. 491

Petitioner's Challenge to Sexual Predator Treatment Program—Lim- ited Exception to Standing Requirement. Courts have recognized a limited exception to this standing requirement, finding noncompliance with a treatment regimen does not prevent consideration of a petitioner's challenge when the treatment is so lacking that it could be deemed the personnel were indifferent or the requirements of the Sexual Predator Treatment Program were otherwise egregious and shocking. Burch v. Howard ………….. 860*

Petitioners' Challenge to Sexual Predator Treatment Program—Individ- ual Standing Requirement. Petitioners under K.S.A. 60-1501 only have standing to challenge the Sexual Predator Treatment Program's treatment regimen as it has been applied to them. Without showing the Program violates their individual rights, petitioners have no standing to challenge how the Program impacts others. Burch v. Howard ………………………………………………... 860*

Statute of Limitations Defense Waived on Appeal if Not Raised in Trial Court. The State waives the ability to raise a statute of limitations defense to a K.S.A. 60-1507 motion in the appellate court if it did not raise that defense in the trial court. Baker v. State …………………………...…… 561

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Time to File 60-1501 Petition Not Tolled by Filing Grievance. Because the grievance procedure is not an available administrative remedy for an inmate challenging the censorship of a publication, filing a grievance does not toll the time to file a K.S.A. 60-1501 petition. Peterson v. Schnurr …………………………………………..…………. 56 INSURANCE:

Health Care—Stabilization Fund—Health Care Provider Has No Vi- carious Liability or Responsibility for Injury by Another Health Care Provider. In Cady v. Schroll, 298 Kan. 731, 317 P.3d 90 (2014), our Su- preme Court mandated that K.S.A. 40-3403(h) absolve all health care providers from any responsibilities, including independent liability, where the injured party sought damages that were derivative of and dependent upon another health care provider's professional services. Brown v. Trobough ……………………………………………..…..… 271

Interpretation of Policy—Appellate Review. The interpretation of the clear language of an insurance policy raises a question of law subject to de novo review. Hemenway v. Automobile Club Inter-Insurance Exchange ……………. 109

K.S.A. 40-3403(h) Absolves Doctor Who Served as Training Site Doc- tor under Facts of This Case. Under the facts of this case, K.SA. 40- 3403(h) absolved the doctor who served as the training site director of the residency program from liability for negligent supervision because a resident and a faculty supervising doctor provided the alleged negligent medical services at issue. Thus, any claim against the doctor who served as the training site director was derivative and dependent upon plaintiffs' claims against the resident and the faculty supervisor. Brown v. Trobough ………....… 271

Motor Vehicle Liability Insurance—Calculation of Underinsured Mo- torist Benefits. In calculating the amount of underinsured motorist benefits where the damages recovered from the tortfeasor are less than the total amount of actual damages because of multiple claims against the tortfeasor's liability insurance limits, the underinsured motorist provider is responsible for paying the difference between the insured's pro rata share of the settlement with the tortfeasor and the insured's total amount of damages up to the insured's underinsured motorist limits. Hemenway v. Automobile Club Inter-Insurance Exchange ………….... 109

— Mandatory Statutory Provisions—Application. The provisions of K.S.A. 40-284 are mandatory insofar as they stipulate what insurance policies in this state must contain. The provisions of the statute are to be considered a part of every automobile policy in this state, and an automobile policy is controlling only to the extent that it does not conflict with or attempt to diminish or omit the statutorily mandated coverage. Thus, unless authorized by statute, provisions of an insurance policy which purport to condition, limit, or dilute the broad, unqualified uninsured motorist coverage mandated by K.S.A. 40-284 are void and unenforceable. Hemenway v. Automobile Club Inter-Insurance Exchange ………...... 109

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— Uninsured and Underinsured Motorist Coverage—Liberal Construc- tion of Statutory Provisions. The uninsured and underinsured motorist statutes are remedial in nature. They should be liberally construed to provide a broad protection to the insured against all damages resulting from bodily injuries sustained by the insured that are caused by an automobile accident and arise out of the ownership, maintenance, or use of the insured motor vehicle where those damages are caused by the acts of an uninsured or underinsured motorist. Hemenway v. Automobile Club Inter-Insurance Exchange ………….... 109

— — Purpose in Mandating Coverage. The purpose of K.S.A. 40-284, which mandates the offer of uninsured and underinsured motorist coverage, is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation. This coverage is intended to provide recom- pense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured or underinsured and not fi- nancially responsible, cannot be made to respond in damages. Hemenway v. Automobile Club Inter-Insurance Exchange ………….... 109

— Underinsured Motorist Coverage—Determination Whether Cover- age Exists. When reviewing a claim of underinsured motorist coverage under K.S.A. 40-284(b), a court must first determine whether UIM coverage exists. When determining whether underinsured motorist coverage is available under the provisions of K.S.A. 40-284(b) in a given case, (1) the tortfeasor's liability coverage must be below the claimant's liability coverage and (2) the claimant must have damages in excess of the tortfeasor's liability coverage. Hemenway v. Automobile Club Inter-Insurance Exchange …………... 109

Plaintiff's Theory of Liability Hinges on Whether Injuries Arose Out of Professional Services of Another Health Care Provider. A plaintiff's theory of liability against a health care provider has no bearing on whether K.S.A. 40-3403(h) will absolve that health care provider from responsibility. Instead, whether K.S.A. 40-3403(h) absolves a plaintiff's suit against a health care provider hinges on whether the plaintiff's injuries arose out of the professional services of another health care provider. Brown v. Trobough ………………………..………………...………… 271

JUDGES:

Witness Has Affirmative Duty to Inform Court of Threats. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness. The witness has the affirmative duty to inform the appropriate authorities and the court of any threats. State v. Lamb …….………..….633*

JURIES:

Jury Selection Process—Empanel Jurors to Decide Case Impartially. The jury selection process does not require or guarantee a jury of persons

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completely unfamiliar with a case. Instead, jury selection is an effort to empanel jurors who, regardless of background or acquaintance, can decide the case impartially—that is, jurors who can exercise deliberate and unbiased judgment. King v. Casey's General Store ………………….…………. 392

JURISDICTION:

Appellate Court's Authority to Hear Case. Jurisdiction defines an appellate court's authority to hear a case. When the record discloses a lack of jurisdiction, this court must dismiss the appeal. State v. McCroy ……………..……….. 643*

Appellate Jurisdiction—Right to Appeal Governed by Statute. The issue of appellate jurisdiction is one of law over which an appellate court has unlimited review. The right to appeal is purely statutory and is not a right contained in the United States or Kansas Constitutions. In re I.A. …….. 145

Appellate Jurisdiction in Civil and Criminal Courts. K.S.A. 60-2101 is the starting point for the inquiry into appellate jurisdiction in both civil and criminal cases. K.S.A. 60-2101(a) dictates that "[a]ppeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22- 3601 and 22-3602." State v. McCroy ………………...………………….. 643*

Court's Power to Hear Appeal vs. Party's Ability to Raise Claim First Time on Appeal. There is a distinction between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first place. The ability to raise a claim generally encompasses considerations of notice, preservation, and timeliness. Jurisdiction defines a court's power to consider an appeal at all, regardless of the issues raised. State v. McCroy ………………………………..…………………….. 643*

Jurisdiction of Appellate Courts—Statutory Time Limitations. Appel- late courts only have jurisdiction to hear an appeal by the State if it is taken within the time limitations and in the manner prescribed by the statutes defining appellate jurisdiction. State v. McCroy ……………….……….. 643* . JUVENILE JUSTICE CODE:

Court Not Required to Advise Juvenile of Statutory Right to Appeal. Nothing within the revised Kansas Juvenile Justice Code requires a district court to affirmatively advise the juvenile of the statutory right to appeal an adjudication or sentence. In re I.A. …………………………………. 145

KANSAS CONSTITUTION:

Search and Seizure—State Constitution Provides Same Protections as U.S. Constitution. Section 15 of the Kansas Constitution Bill of Rights provides the same protection from unlawful government searches and seizures as does the Fourth Amendment to the United States Constitution. State v. Daino ………………………………………………………… 653*

KANSAS CORPORATION COMMISSION:

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Grouping Oil and Gas Leases into Single Unit—Factors for Consider- ation. There are four factors which the Kansas Corporation Commission must consider before it can order unit operations: (1) The primary production from a pool or a part thereof sought to be unitized has reached a low economic level and, without introduction of artificial energy, abandonment of oil or gas wells is imminent; or (2) the unitized management, operation, and further development of the pool or the part thereof sought to be unitized is eco- nomically feasible and reasonably necessary to prevent waste within the reser- voir and thereby increase substantially the ultimate recovery of oil or gas; (3) that the value of the estimated additional recovery of oil or gas substantially exceeds the estimated additional cost incident to conducting such operations; and (4) that the proposed operation is fair and equitable to all interest owners. Lario Oil & Gas Co. v. Kansas Corporation Comm'n……………….……. 184

Jurisdiction under Unitization Act—Group Oil and Gas Leases into Single Unit. The Kansas Unitization Act, K.S.A. 55-1301 et seq., gives the Kansas Corporation Commission the jurisdiction to permit the grouping of oil and gas leases into a single unit. Lario Oil & Gas Co. v. Kansas Corporation Comm'n ………..……..….… 184

LEGISLATURE:

Public Policy Questions Determined by Legislature. Questions of public policy are for legislative and not judicial determination, and where the legislature declares a policy, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts. In re Tax Appeal of Southwestern Bell Tel. Co. ………………..723*

LIMITATIONS OF ACTIONS:

Accrual of Certain Causes of Action to Begin Running Statute of Limita- tions—Reasonably Ascertainable. Under K.S.A. 60-513(b), the cause of action listed in K.S.A. 60-513(a) "shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party." Foxfield Villa Assocs. v. Robben …………….………………….………… 122

Identification of Party Causing Injury Not Required under Statute—Trig- gering Events. The statute does not require the identification of the party who caused the injury. Instead, the only triggering events under the statute are (1) the act which caused the injury; (2) the existence of substantial injury; and (3) the injured party's awareness of the fact of injury. Foxfield Villa Assocs. v. Robben ……………….……………….………… 122

Statute of Limitations for Bringing Action. The statute of limitations begins to run when "the fact of injury" becomes reasonably ascertainable to the injured party. Foxfield Villa Assocs. v. Robben …..…………………………….…. 122

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Tolling of Statute of Limitations—Fraudulent Concealment Can Toll Stat- ute of Limitations. In some instances, a statute of limitations can be stopped from running—or "tolled"—for some period of time. Kansas courts have held fraud and fraudulent concealment can toll a statute of limitations. Foxfield Villa Assocs. v. Robben ………………………….……...……. 122 Tolling of Statute of Limitations by Party's Fraudulent or Intentional Concealment. In order to toll a statute of limitations, the party's concealment must be fraudulent or intentional and, in the absence of a fiduciary or confidential relationship, there must be something of an affirmative nature designed to prevent, and which does prevent, discovery of the cause of action. Foxfield Villa Assocs. v. Robben ……………………….……..….. 122

MECHANICS' LIENS:

No Presumption of Fraud if Document Provided For by Constitution or Statute. If a document is provided for by constitution or statute, it is not presumed fraudulent. A mechanic's lien is a document provided for by Kan- sas law and thus is not fraudulent under K.S.A. 2019 Supp. 58-4301(e)(1). In re Lien Against the District at City Center …………………….….. 884*

Statutory Remedial Mechanism—Purpose. Mechanic's liens are remedial mechanisms, created by statute and designed to protect unpaid suppliers of labor and materials for real estate construction projects. The theory underlying the granting of a mechanic's lien against the property is that the property improved by the labor, equipment, material, or supplies should be charged with the payment of the labor, equipment, material, or supplies. In re Lien Against the District at City Center …………………….….. 884*

Strict Compliance with Statute Required before Lien Is Enforceable. Once a mechanic's lien attaches to property, courts liberally construe Kan- sas' lien statutes to effect their remedial goal. But a party asserting a lien must strictly comply with Kansas' mechanic's lien statutes before that lien becomes enforceable. In re Lien Against the District at City Center .... 884*

Verified Lien Statement—Requisite Components. Any person filing a lien—whether a contractor, subcontractor, or other supplier—must include a verified statement showing the owner's name, the claimant's name and address for service of process, a description of the real property, and a reasonably itemized statement and the amount of the claim. In re Lien Against the District at City Center ……………………..….. 884*

MOTOR VEHICLES:

Issuance of Rebuilt Salvage Title in Kansas. When another state has designated a travel trailer as a salvage vehicle and the trailer has since been repaired so that it can be safely operated in Kansas, the Kansas Department of Revenue may issue a rebuilt salvage title for the trailer. Central RV v. Kansas Dept. of Revenue …………………………….… 293

Traffic Stop—Officer Must Have Reasonable Suspicion of Illegal Transac- tion to Justify Detention. When a driver produces a valid license and proof

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that he or she may operate the vehicle, the driver must be allowed to proceed without being subject to further delay for additional questioning. To justify a temporary detention for further questioning or investigation, the officer must have reasonable and articulable suspicion of illegal transactions in drugs or another serious crime. State v. Arrizabalaga ………………….. 79 NEGLIGENCE:

Duty in Negligence Action Established by Statute—In This Case Error for Court to Grant Partial Summary Judgment. Under the facts of this case, it was error for the trial court to grant partial summary judgment in favor of defendant home healthcare company in ruling that K.S.A. 39- 1431(a) was inapplicable as a matter of law when establishing a duty in a negligence action for the death of a person diagnosed with schizophrenia and diabetes who was receiving twice daily in-home nursing visits from a home healthcare company. Morgan v. Healing Hands Home Health Care ……………………….. 368

Duty of Care Established From Statute. A plaintiff may use a statute to establish a duty of care in a simple negligence case even if that statute does not provide a private right of action. Morgan v. Healing Hands Home Health Care ……………………….. 368

Proof Required for Actionable Negligence. Actionable negligence first requires that the alleged wrongdoer owe a legally recognized duty of due care to the injured party, and the wrongdoer must then breach that duty in a way causing the injury. Lack of due care typically entails doing something a reasonable person would not do under the circumstances or failing to do something a reasonable person would do. Whether a duty exists presents a question of law. Breach of a lawful duty and the causal connection between a breach and the claimed injury are questions of fact. Estate of Randolph v. City of Wichita ………………………………... 675*

Statute Establishes Duty of Care and Violation of Statute Establishes Breach of Duty—Requirements. In a simple negligence suit, a plaintiff may use a statute to establish a duty of care and violation of a statutory requirement to establish breach of that duty so long as the injured party was a member of the class the statute sought to protect and the injury was of the character the Legis- lature sought to protect the public against. Morgan v. Healing Hands Home Health Care …………………..…….…. 368

OIL AND GAS:

Definition of "Pool" under Kansas Unitization Act. Pool is defined as an underground accumulation of oil and gas in one or more natural reservoirs in communication so as to constitute a single pressure system so that production from one part of the pool affects the pressure throughout its extent. K.S.A. 55-1302(b). Lario Oil & Gas Co. v. Kansas Corporation Comm'n ……………..…. 184

Definition of "Waste" under Kansas Unitization Act. Waste is defined as both economic and physical waste resulting from the development and

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operation separately of tracts that can best be operated as a unit. K.S.A. 55- 1302(d). Lario Oil & Gas Co. v. Kansas Corporation Comm'n ………. 184

PARENT AND CHILD:

Child in Need of Care Adjudication—Clear and Convincing Evidence to Support Adjudication. To adjudicate a child as a child in need of care when the parent contests such a finding, the court shall hear evidence in support of adjudication, and the State is required to prove the same by clear and convincing evidence. When a parent is not present, the case may proceed by proffer unless the parent appears by counsel and has instructed counsel to object. In re J.L. ………………………..……………………. 60

— Court's Considerations. The temporal scope of the circumstances to be considered by the court in deciding whether to adjudicate a child as one in need of care must be based on the plain language of the statutory criteria upon which the court is making the adjudication decision. If the statutory criterion is framed in the present perfect tense, then the adjudication decision will depend upon a view of the child's circumstances in the past and perhaps continuing to the present. If the statutory criterion is framed in the present tense, then the adjudication decision will depend upon a view of the child's present circumstances existing on the day of the adjudication hearing. In re D.H. ………………………………………………..……..…. 421

— Statutory Notice Requirements. The State's petition containing a blanket notice that if a parent failed to appear at any hearing the result would be the court making decisions without the parent's input and could result in a default judgment did not satisfy the notice requirements of K.S.A. 2018 Supp. 60-255 where the father had previously appeared in the case nor did it satisfy the minimum due process requirements for notice when the purpose of the hearing was to consider pretrial matters and the default judgment granted was adjudication of the child as a child in need of care. In re J.L. …………………………………………………………..…….. 60

Constitutional Protections for Parent by Assuming Parental Duties. The United States and Kansas Constitutions provide substantive protection for a parent when he or she has assumed parental duties. But when a parent has not accepted some measure of responsibility for his or her child's future, the law will not protect that parent's mere biological relationship with the child. In re Adoption of C.S. …………………………..…………..…… 352

Due Process—Notice by State Required of Potential Deprivation. A component of due process requires the State to provide notice of a potential deprivation of the interest and an opportunity to be heard regarding the deprivation. In re J.L. ……………………………………………………….. 60

— Three-Factor Balancing Test. In determining the nature and extent of the process a parent is due, the three-factor balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), is to be

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used. Those three factors are: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedure used, including the fiscal and administrative burdens additional or substitute procedure would incur. In re J.L. ………………………………….……………………….….…. 60

Father's Duty to Support Pregnant Mother under Kansas Law. The responsibility to support a person's child does not commence at birth. A father has an affirmative duty under Kansas law to provide support to the pregnant mother. In re Adoption of C.S. ……………………………..………..… 352

Father's Parental Rights May Be Terminated if Fail to Provide Support for Mother under Adoption Statute. Kansas adoption statutes allow a district court to terminate a father's parental rights when the father, "after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child's birth." K.S.A. 2018 Supp. 59-2136(h)(1)(D). In re Adoption of C.S. ….…...… 352

Fundamental Liberty Interest Regarding Care of Child. A parent has a fundamental liberty interest in making decisions regarding the care, custody, and control of his or her child. In re J.L. ………………………….. 60

Kansas Child Support Guidelines—Establishment of Maintenance. The district court did not abuse its discretion in the establishment of maintenance by failing to account for a likely reduction in part of one party's income when the court separately recognized that likely adjustment when it decided how to allocate a debt of the parties. In re Marriage of Thrailkill ……... 244 . — Income from All Sources Included in Calculation of Child Support. Under the Kansas Child Support Guidelines, income from all sources is included when child support is calculated. The district court in this case properly included the military retired pay set aside to each party in the party's income for child-support purposes. In re Marriage of Thrailkill .... 244

— Modification of Child Support Amount. The Kansas Child Support Guidelines provide for modification of the support amount if, among other things, a change in income would result in a 10% change in the child-support amount. The district court in this case did not abuse its discretion by not calculating different worksheets to show anticipated changes contingent on future events that had not been shown to constitute a material change under the guidelines. In re Marriage of Thrailkill ……………..…..…... 244

— Valuation Date for Assets and Debts at Trial Set by District Court. On request, the district court must set a valuation date to be used for all assets and debts at trial. But the court may also consider things that happen before or after the valuation date. Here, the district court could treat a stu- dent loan taken out for the benefit of the parties' son as marital debt when both parties had agreed to take out the loan and the loan was taken out before the parties' financial issues were resolved at trial. In re Marriage of Thrailkill ……………………………………..……... 244

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Parent Entitled to Due Process—Opportunity to Be Heard. Before a parent can be deprived of the right to the custody, care, and control of his or her child, the parent is entitled to due process. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In re J.L. ………….…………………………… 60

Termination of Parental Rights—Age Not Factor—Statutory Consid- erations. K.S.A. 2018 Supp. 59-2136 draws no distinction between parents who are minors and parents who are over the age of 18 when establishing the parameters of a district court's analysis. Instead, K.S.A. 2018 Supp. 59- 2136(h)(2)(A) directs a court faced with a petition to terminate a person's parental rights to "consider all of the relevant surrounding circumstances"— including, inter alia, his or her age, earning power, and any support the person provided. In re Adoption of C.S. ……………………………...……. 352

— Appellate Review. An appellate court does not reweigh conflicting evidence, reassess witnesses' credibility, or redetermine questions of fact. In re Adoption of C.S. ………..………………………………..….……. 352

— Application of Statute. When a court concludes it is appropriate to terminate a person's parental rights under K.S.A. 2018 Supp. 59-2136(h)(1)(D), it need not consider whether termination would have been warranted under a different circumstance listed in K.S.A. 2018 Supp. 59-2136(h)(1). In re Adoption of C.S. ………………………………………………….…. 352

— Supported by Clear and Convincing Evidence in This Case. The district court's finding in this case that the child's mother failed to assume parental duties for a two-year period was supported by clear and convincing evidence, so the district court's order terminating the mother's parental rights was proper. In re Adoption of E.D. …………...…………………. 500

Termination of Parental Rights Requires Proof of Clear and Convinc- ing Evidence—Appellate Review. The party seeking to terminate a person's parental rights has the burden of proving by clear and convincing evidence that termination is appropriate under K.S.A. 2018 Supp. 59-2136. Clear and convincing evidence is a standard of proof—or confidence in the facts—sufficient for a fact-finder to believe that the truth of the facts asserted is highly probable. Appellate courts reviewing a termination decision must determine whether, after reviewing all the evidence in the light most favorable to the prevailing party, a rational fact-finder could have found the determination to be highly probable. In re Adoption of C.S. ………..…. 352

PENAL INSTITUTIONS:

Censorship of Publications—Grievance Procedure Not Available Rem- edy. Under K.A.R. 44-15-101a(d)(2), inmates may not use the grievance procedure to challenge the censorship of publications. Peterson v. Schnurr ……………….……………..……………………… 56

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Prison Officials May Not Retaliate for Inmate's Exercise of Rights. Prison officials may not retaliate against or harass an inmate based on the inmate's exercise of constitutionally protected rights. Grammer v. Kansas Dept. of Corrections ………………...………..… 533 POLICE AND SHERIFFS:

Police-Citizen Encounter—Voluntariness of Encounter—Totality of Circumstances. The analysis of the voluntariness of an encounter must en- compass the totality of the circumstances. In that totality of the circumstances context, the test is whether a reasonable person would feel free to disregard the officer's questions, decline the officer's requests, or otherwise terminate the encounter, but the person nevertheless chooses to voluntarily submit to a prolonged encounter. State v. Gonzalez ………….………. 510

Public Safety Stop—Scope. An officer does not exceed the scope of a public safety stop, under the circumstances of this case, by asking for a person's name, getting a verbal response, and checking that name locally for warrants. State v. McKenna ……………………………………………... 731*

Traffic Stop—Burden of Proof on State That Reasonable Suspicion Ex- isted for Traffic Stop. The State has the burden to demonstrate that a seizure following an officer's determination that reasonable suspicion existed was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. Traffic stops have limitations. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. State v. Arrizabalaga …………………….………………...…………… 79

— If No Reasonable Suspicion Any Delay Is Unreasonable. Without reasonable suspicion to justify the extension of a completed stop, any further delay is unreasonable. State v. Arrizabalaga …….………………….….. 79

— Officer May Broaden Inquiry if Suspicions Arise. A police officer need not ignore evidence that another crime occurred when completing a traffic stop. A police officer may broaden his or her inquiry when the detainee's actions and the circumstances suggest a crime unrelated to the traffic stop has occurred. State v. Arceo-Rojas ……………..……………. 741*

— Officer's Actions Must Reasonably Relate to Circumstances Justify- ing Initial Stop. Traffic stops must be minimally intrusive and diligently pursued, and a law enforcement officer's actions must be reasonably related in scope to the circumstances that justified the initial interference. During a routine traffic stop, an officer may: (1) request the motorist's driver's license and vehicle registration, (2) conduct a computer check, (3) issue a citation, and (4) take steps reasonably necessary to protect the officer's safety. The stop can last only as long as necessary to complete those tasks, and the tasks must be diligently pursued. State v. Arrizabalaga …….……...... …..…. 79

— Reasonable Suspicion. Reasonable suspicion exists when a law enforcement officer has a specific, objective, articulable basis for believing that the

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person being detained is committing, has committed, or is about to commit a crime. State v. Arceo-Rojas ………………………………...………. 741*

— — Factors. Because air freshener and other strong fragrances are known for masking drug odor, air freshener and other strong fragrances may contribute to a police officer's reasonable suspicion. State v. Arceo-Rojas ………………………………………….………. 741*

— Reasonable Suspicion by Law Enforcement for Traffic Stop. Rea- sonable suspicion requires something more than just a hunch, law enforcement must be able to find a particularized and objective basis for believing the person stopped is engaged in criminal activity. State v. Arrizabalaga ………………………………………………..….. 79

— Reasonable Suspicion of Traffic Infraction. A police officer may perform a traffic stop if he or she reasonably suspects that the driver committed a traffic infraction. State v. Arceo-Rojas ……..………………………. 741*

— Scope of Stop---Travel Plan Questioning Considerations. Discrepan- cies in travel plans or histories have been used as objective reasonable suspicion factors, depending on the nature of the discrepancy. As with unusual travel plans, inconsistencies in information provided to the officer during the traffic stop may give rise to reasonable suspicion of criminal activity. Discrepancies that arouse suspicion include an individual's internally inconsistent statements and the inconsistencies between a passenger and driver's statements regarding travel plans. State v. Arceo-Rojas ………..……. 741*

REAL PROPERTY:

Definition of Ownership—Tenant under Lease Not an Owner under the Act. Ownership is the bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing, regardless of any actual or constructive control. Ownership rights are general, permanent, and heritable. A tenant under a lease is not an owner as defined by the Kansas Fairness in Private Construc- tion Contract Act. Drywall Systems, Inc. v. A. Arnold of Kansas City … 263

Liens against Property—Statute Definition of Purported Lien as "Fraud- ulent". K.S.A. 2019 Supp. 58-4301(e)(1) defines a purported lien as "fraudulent" if it is "not a document or instrument provided for by the constitution or laws of this state or of the United States." A court considering an allegation that a lien is "fraudulent" under this provision must not adjudicate whether the lien or interest is legitimate but only whether the documents are recognized under Kansas or federal law. In re Lien Against the District at City Center ……... 884*

— Statutory Procedure to Expedite Claims. The Kansas Legislature enacted K.S.A. 58-4301 in response to the activities of militias and common- law type groups, to provide a quick and efficient method to remove facially bogus liens meant solely to intimidate and harass property owners. In re Lien Against the District at City Center ……...... 884*

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Renter with Right to Purchase Property—No Leasehold Interest Ac- quired until Paid. When a lease contains a stipulation that the renters shall have the right to purchase the premises, if they shall so elect, there is no completed sale. Renters do not acquire any estate in the land beyond the leasehold interest until they have elected to accept the offer and have paid or tendered the purchase price stipulated in the contract. Drywall Systems, Inc. v. A. Arnold of Kansas City …………….………. 263

Short Term Leases to Buy Property—Not Sales Contract. Short-term leases with options to buy are treated as leases, rather than sales contracts. Drywall Systems, Inc. v. A. Arnold of Kansas City ……….……….…… 263

SEARCH AND SEIZURE:

Attenuation Doctrine—Consideration of Outstanding Warrant. Although the existence of an outstanding warrant is certainly a factor weighing against suppression of evidence under the attenuation doctrine, that factor is not controlling in every case. Instead, the discovery of the warrant must be considered in the context of the other factors in the attenuation analysis. State v. Ellis …………………………………………………..……… 477

— No Bright-Line Rule—Court's Considerations. There is no bright-line rule defining when the attenuation doctrine applies to admit evidence that would normally be suppressed. Instead, courts consider various factors, including the temporal proximity between the unlawful conduct and the discovery of the evidence in question; the presence of intervening circumstances (such as the discovery of a warrant); and the purposes and flagrancy of the official misconduct. State v. Ellis …………..………………….. 477

— Purpose and Flagrancy of Official Misconduct—Most Critical Fac- tor. The third factor in the attenuation analysis—the purpose and flagrancy of the official misconduct—is perhaps the most critical because it focuses on the primary purpose of the exclusionary rule: deterring police misconduct. To assess the purpose of the misconduct, Kansas courts look at factors such as an officer's regular practices and routines, an officer's reason for initiating the encounter, the clarity of the law forbidding the illegal conduct, and the objective appearance of consent. State v. Ellis ………..………. 477

Categories of Police Encounters. Whenever an officer interacts with a person in a public place, the rights protected by the Fourth Amendment are tested. The legal principles applied to safeguard those rights vary depending on the type of interaction that takes place. Kansas courts have recognized four such interactions: (1) voluntary encounters; (2) investigatory detentions; (3) welfare checks or public-safety stops; and (4) arrests. State v. Ellis ………………………………………..………….………. 477

Consent to Search—State's Burden of Proof. The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search is valid. State v. Daino ………………………………….…….. 653*

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Consent under Fourth Amendment—Objective Reasonableness Standard. The standard for measuring the scope of a person's consent under the Fourth Amendment is that of objective reasonableness—what would a reasonable person have understood by the exchange between the officer and the person. State v. Daino …………………………………………………..……….. 653*

Exclusionary Rule Based on Deterrence. The exclusionary rule is based on deterrence. To justify the exclusion of unlawfully seized evidence, law enforcement's conduct must be sufficiently deliberate so exclusion can meaningfully deter it and sufficiently culpable so the deterrence is worth the price paid by the justice system in excluding the evidence. State v. Ellis ………………..….. 477

Motion to Suppress Evidence—Appellate Review. Appellate courts use a bifurcated standard of review when considering a motion to suppress evidence. We review the factual underpinnings of the decision for substantial competent evidence, and we review the ultimate legal conclusion drawn from those facts de novo. Substantial competent evidence exists when a reasonable person could accept the evidence as being adequate to support a conclusion. While engaging in this review, we do not reweigh the evidence, assess witness credibility, or resolve evidentiary conflicts. State v. Arceo-Rojas ………………………. 741*

Reasonable Suspicion—Question of Law. The existence of reasonable suspicion is a question of law. State v. Arceo-Rojas ……….…………….……. 741*

Traffic Stop—Court's Consideration Whether Police Diligently Pursued Investigation. To determine if officers have complied with limits, courts must take into account whether the police diligently pursued their investigation. Spe- cifically, courts should examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. State v. Arrizabalaga ………………………..………………..……...……. 79

— Fourth Amendment Requirements. A routine traffic stop is a seizure under the Fourth Amendment to the United States Constitution. State v. Gonzalez …………………………..…...….…….…………….…. 510

— Law Enforcement Must Act Diligently. Law enforcement must act diligently and detain only temporarily for no longer than necessary to effectuate the purpose of the stop, even if law enforcement has reasonable suspicion that the person is engaging in illegal activity. State v. Arrizabalaga ……………….. 79

— Law Enforcement's Mission. The mission of a traffic stop includes checking the driver's license, determining whether the driver has outstanding warrants, reviewing the car's registration, and reviewing the car's proof of insurance. Dog sniffs are not part of a traffic stop's mission. State v. Arceo-Rojas ……..… 741*

— Reasonable Suspicion—Totality of Circumstances. Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer. In determining whether reasonable suspicion exists, the court must judge the officer's actions in light of common sense and ordinary human experience.

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State v. Arceo-Rojas …………………………………………..………… 741*

— Reasonable Suspicion That Crime Occurred Extends Stop. A police officer may extend a traffic stop if the police officer develops reasonable suspicion or probable cause to believe another crime has occurred during the traffic stop. State v. Arceo-Rojas ………………………………… 741*

— Scope and Duration. Traffic stops cannot be measurably extended beyond the time necessary to process the infraction that prompted the stop unless there is a reasonable suspicion of or probable cause to believe there is other criminal activity, or consent. State v. Gonzalez ………...…….. 510

— Totality of Circumstances Standard—Application. The totality of the circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them. A reviewing court must give due weight to the factual inferences drawn by both the trial court and the law enforcement officers. The totality of the circumstances standard does not envision a reviewing court labeling or ranking each factor as to innocent or suspicious appearances. Instead, the court determines whether all the circumstances justify the detention. The relevant inquiry is not whether particular conduct is innocent or guilty but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. The totality of the circumstances standard precludes a divide-and-conquer analysis under which factors that are readily susceptible to an innocent explanation are entitled to no weight. State v. Arceo-Rojas ……………………………………… 741*

— When Unlawful. A traffic stop may become unlawful if it is prolonged beyond the time reasonably required to issue a citation or a warning ticket. State v. Arceo-Rojas ……………………………………………….…. 741*

Traffic Stop without Reasonable Suspicion—Suppression of Evidence under Exclusionary Rule. If an officer executed a traffic stop without reasonable suspicion that the driver was committing a traffic infraction or crime, then the evidence discovered later during that stop may be suppressed under the exclusionary rule. State v. Arceo-Rojas …..……………………………...……. 741*

Valid Consent to Search—Nonverbal Acts That Are Specific and Une- quivocal May Show Consent. A defendant may validly consent for officers to enter his or her apartment by responding nonverbally to the officers' request to enter by acts that are specific and unequivocal, such as by opening the door widely, stepping back, and making a sweeping gesture with his or her hand. State v. Daino ……………………………………..……….. 653*

— Verbal Consent Not Required. Consent must be specific and unequivocal, but it need not be verbal. Consent may instead be granted through gestures or other indications of agreement, so long as they are comprehensible enough to a reasonable officer. State v. Daino ……………….……….. 653*

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Voluntary Consent—Mere Acquiescence Is Inadequate. Mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent. State v. Daino ………………………………………….……….. 653*

Voluntary Encounter Analysis—Public-Safety Stop. An officer's authority to conduct welfare checks or public-safety stops is not based on a suspicion of criminal activity, but rather a need to check on a person's health or confirm the safety of a situation. State v. Ellis …………………...…… 477

— Three-Part Test. This court uses a three-part test to define the contours of a valid welfare check: First, an officer has the right to stop or investigate when there are objective, specific, and articulable facts to suspect that a person needs help or is in peril. Second, if the person needs help, the officer may take the appropriate steps to render assistance. And third, when the officer believes that the person is no longer in need of assistance, any further actions constitute a seizure. State v. Ellis ………………….….………. 477

Warrantless Entry and Search—Emergency Aid Exception to Warrant Requirement. The Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. As a result, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. State v. Fisher ………………………………………………....….…… 460

Warrantless Search—Emergency Aid Exception—Application. Offic- ers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception and may continue an emergency investigation until assured there is no one inside in need of assistance—particularly when the officer encounters circumstances that continue to raise suspicions. State v. Fisher ……………………………………..…………. 460

— — — The emergency aid exception is a limited exception permitting a warrantless search when: (1) law enforcement officers enter the premises with an objectively reasonable basis to believe someone inside is seriously injured or imminently threatened with serious injury; and (2) the manner and scope of any ensuing search once inside the premises is reasonable. The emergency aid exception limits officers to do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance. State v. Fisher ……………………..……..……… 460

— — Objective View of Officer's Action. An officer's action is reasonable under the emergency aid exception when the circumstances, viewed objectively, justify the officer's action. An officer's subjective motivation is irrelevant. State v. Fisher ………………………………….………………. 460

Warrantless Search and Seizure—State's Burden of Proof. The burden is on the State to establish the lawfulness of a warrantless search and seizure. State v. Arceo-Rojas ………………………………..………….. 741*

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SEXUALLY VIOLENT PREDATOR ACT:

Annual Review Proceedings Required under Due Process. Due process requires annual review proceedings to utilize the same standard of proof as used in the original commitment proceedings. As such, to deny a committed person release, the State is also constitutionally required to prove beyond a reasonable doubt that the person would have serious difficulty controlling his or her behavior if transitionally released. In re Care & Treatment of Quillen …………………………………… 407 . Annual Review Required When Person Civilly Committed under Act. When a person is civilly committed under the Kansas Sexually Violent Predator Act, K.S.A. 2018 Supp. 59-29a08 entitles such person to an annual review to determine whether his or her mental abnormality or personality disorder has so changed as to render them safe to be at large. The committed person can also use the annual review process to seek transitional release out of the treatment program by filing a petition for transitional release. In the Care & Treatment of Quillen ……………………….…..…….… 407

Application of Kansas Rules of Civil Procedure—Exception. In proceedings under the Kansas Sexually Violent Predator Act, the Kansas Rules of Civil Procedure apply unless the Sexually Violent Predator Act specifically provides otherwise. In re Care & Treatment of Jones …………. 808*

Change in Person's Mental Abnormality or Personality Disorder—Part of Ultimate Legal Test. The Kansas Sexually Violent Predator Act's reference to a change in a person's "mental abnormality or personality disorder" is part of the ultimate legal test applied by courts assessing whether a person should continue to be committed under the Act. It does not establish or require a certain standard for treatment purposes. Burch v. Howard ……….…. 860*

Commitment under the Act—Burden of Proof on State. To commit a person under the Kansas Sexually Violent Predator Act, K.S.A. 2018 Supp. 59-29a02(a), the State must prove beyond a reasonable doubt that (1) the person has been convicted of or charged with a sexually violent offense, (2) the person suffers from a mental abnormality or personality disorder, (3) that mental abnormality or personality disorder makes the person likely to commit repeat acts of sexual violence, and (4) the person has serious difficulty controlling their dangerous behavior. In the Care & Treatment of Quillen …………………..………………. 407

Petition for Transitional Release—Burden of Proof on Committed Per- son to Show Probable Cause That Disorder Significantly Changed. Upon filing a petition for transitional release, the committed person has the burden under K.S.A. 2018 Supp. 59-29a08(d) to show probable cause to believe that the person's mental abnormality or personality disorder has significantly changed so that he or she is safe to be placed in transitional release. In the Care & Treatment of Quillen ……………….…………… 407

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Probable Cause Established by Committed Person—Hearing on Re- lease—Burden of Proof on State. If the committed person establishes probable cause, the court must conduct a hearing on the petition for transitional release. Under K.S.A. 2018 Supp. 59-29a08(g), the burden of proof at this hearing is on the State to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in repeat acts of sexual violence. In the Care & Treatment of Quillen ………………………..…………. 407

Sexual Predator Treatment Program—Effectiveness of Program's Treat- ment. When a person declines to participate in the Sexual Predator Treatment Program's treatment regimen, there is no way to determine whether the Pro- gram's treatment, as applied to that person, has been or will be effective. Burch v. Howard ………………………………………………………... 860*

Statutory Authorization to Commit Sexually Violent Predators for Treat- ment. The Kansas Sexually Violent Predator Act, K.S.A. 2018 Supp. 59-29a01 et seq., authorizes the State to civilly commit sexually violent predators to the custody of the Kansas Department for Aging and Disability Services for treatment. In the Care & Treatment of Quillen …………………………….….. 407

STATUTES:

Change of Name—No Requirement of Compelling Reason for Name Change. The statutory name change provisions in Kansas do not require demonstration of a compelling reason for the name change. If the judge is satisfied as to the truth of the allegations of the petition and there is reasonable cause for changing the name of the petitioner, "the judge shall so order" the change. K.S.A. 60-1402(c). In re Petition of Clark …………..…… 220

Constitutionality—Appellate Review. Determining a statute's constitutionality is a question of law subject to unlimited appellate review. State v. Hinnenkamp .…………………………………………………….. 1

— Random Drug and Alcohol Testing Not Violation of Fourth Amend- ment or Section 15 of Kansas Constitution Bill of Rights. K.S.A. 2018 Supp. 21-6607(c)(6) does not on its face violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights. State v. Hinnenkamp ….……………………………………….…. 1

Construction—Intent of Legislature. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. In re D.H. ……………………………..………….. 421

Construction by Courts. The courts are to construe statutes to avoid unreasonable or absurd results. State v. Arceo-Rojas ……….…………... 741*

— Legislative Intent—Appellate Review. The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain

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legislative intent through the statutory language enacted, giving common words their ordinary meanings. Coastal Credit v. McNair .………..….... 31

— State v. Justice-Puett …………………………………..………….... 227

— Presumption That Legislature Did Not Intend to Enact Meaningless Legislation. Courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. In re D.H. …………………………….……………………. 421

Construction of Criminal Statutes—Rule of Lenity. In general, criminal statutes are strictly construed in favor of the accused. That rule is con- strained by the rule that interpreting a statute must be reasonable and sensi- ble to effect the legislative design and intent of the law. State v. Chardon ……………………………………………………….. 177

— State v. Justice-Puett ……………………………………………….. 227

Construction of K.S.A. 2018 Supp. 21-5805(c). When the words of K.S.A. 2018 Supp. 21-5805(c) are given their ordinary meaning, and the language is read in context with the other subsections of the statute, it is clear that the terms "tool" and "device" are both modified by the descriptive phrase "designed to allow the removal of any theft detection device." Thus, the phrase "designed to allow the removal of any theft detection device" requires an intentional design particular to, and designed for the purpose of, the removal of any theft detection device. State v. Justice-Puett ……… 227

Construction of Statutes—Determining Legislative Intent—Appellate Review. 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. In re D.H. …………………………...……………………… 421

Construction of Words and Phrases and Technical Words and Phrases. Words and phrases shall be construed according to the context and approved usage of the language, but technical words and phrases and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings. Johnson v. Stormont Vail Healthcare .…………………….……………. 44

Definition of "Adult" under K.S.A. 39-1430(a)—Application. A person need not have been previously declared incompetent, appointed a guardian, or appointed a conservator to qualify as an "adult" within the meaning of K.S.A. 39-1430(a) and K.S.A. 39-1431(a). Morgan v. Healing Hands Home Health Care …………………….…. 368

Interpretation—Administrative Agency Interpretation of Statute—Appel- late Review. Kansas courts give no deference to administrative agencies' interpretation of statutory language. Instead, the interpretation of a statute is a legal question over which courts' review is unlimited. In re Tax Appeal of Southwestern Bell Tel. Co. …………………………… 723*

LII SUBJECT INDEX 57 KAN. APP. 2d

PAGE

— Aikins v. Gates Corp. ………………………………..…………….. 875*

— Intent of Legislature Governs. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the statute. If a statute is plain and unambiguous, courts will not speculate about the legislative intent behind that clear language. Courts do not add or ignore statutory requirements; they give ordinary words their ordinary meanings. Only when a statute's language is unclear or ambiguous does a court turn to canons of construction or legislative history to construe the legislature's intent. Aikins v. Gates Corp. …………………………..875*

— — Appellate Review. Questions of statutory interpretation are legal issues over which appellate courts exercise unlimited review. When interpreting statutes, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. For this reason, courts look first to the statute's text; it is only when the meaning of the statutory language is ambiguous that courts turn to rules of statutory construction. In re Lien Against the District at City Center …………. 884*

— Legislature's Intent—Appellate Review. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the statute. Courts therefore do not add or delete statutory requirements, and courts give ordinary words their ordinary meanings. In re Tax Appeal of Southwestern Bell Tel. Co. ……………………… 723*

Interpretation of Statute—Appellate Review. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Wilmore ………………………………………….……..…….. 469

Kansas Unitization Act—Legislative Purposes. The legislative purpose of the Kansas Unitization Act is to prevent waste, to further the conservation of oil and gas, and to protect the correlative rights of persons entitled to share in the production of oil and gas. Lario Oil & Gas Co. v. Kansas Corporation Comm'n …………..……. 184

Legislative Intent—Appellate Review. When the Legislature shows that it knew how to create an exception and fails to do so, our courts assume the Legislature did not intend to include such an exception. State v. Chardon ………………………...... ………… 177

— Appellate Review Differs Depending on Whether Statute Is Ambig- uous or Unambiguous. 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 not readily found in its words. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the Legislature's intent. Coastal Credit v. McNair ……………………………………………….. 31

57 KAN. APP. 2d SUBJECT INDEX LIII

PAGE

Presumption of Constitutionality—Appellate Review. We presume statutes are constitutional and resolve all doubts in favor of a statute's validity. State v. N.R. ………………….………….…………………………….. 298

"Usual Place of Abode" Statutory Definition and Application. The term "usual place of abode" as used in K.S.A. 2018 Supp. 61-3003(d)(1) and K.S.A. 2018 Supp. 77-201 Twenty-fourth is construed and applied. Coastal Credit v. McNair …………………………………………...…... 31 SUMMARY JUDGMENT:

Application—Appellate Review. Standards for granting summary judgment and review on appeal are stated and applied. Estate of Randolph v. City of Wichita ……………………………….... 686*

TAXATION:

Electricity to Power HVAC Units in This Case Exempt from Sales Tax under Statute. The dedicated HVAC units at issue make it possible for the appellee telecommunications company's transmission and switching equipment to provide a continuous signal. The electricity used to power these dedicated HVAC units is "essential or necessary to" and "used in the actual process of" providing telecommunication services under K.S.A. 2018 Supp. 79-3602(dd)(2) and is therefore exempt from sales tax under K.S.A. 2018 Supp. 79-3606(n). In re Tax Appeal of Southwestern Bell Tel. Co. .….. 723*

TORTS:

Aiding and Abetting Claim—Requirements. A claim for aiding and abetting requires the commission of a wrongful act that causes an injury to a party. Foxfield Villa Assocs. v. Robben …………………………….….. 122

Civil Assault—Requirements for Actionable Injury. A civil assault entails the threat of bodily harm coupled with the apparent ability to carry out the threat resulting in the victim's immediate apprehension of harm. The actionable injury is the victim's apprehension and, thus, his or her mental disturbance resulting from the threat. Estate of Randolph v. City of Wichita …………………….………….. 686*

Civil Battery—Compensable Harm Results from Nature and Extent of Contact. Civil battery entails an unprivileged intentional touching with the purpose of bringing about a harmful or offensive contact. The compensable harm derives from the nature and extent of the contact Estate of Randolph v. City of Wichita …………………….………….. 686*

Civil Conspiracy—Requirements. A claim for civil conspiracy requires the commission of some wrong giving rise to a cause of action independent of the conspiracy. Foxfield Villa Assocs. v. Robben …...………..….….. 122

Educational Malpractice Not Cause of Action in Kansas. Kansas does not recognize a cause of action in tort for educational malpractice. Florez v. Ginsberg ……………..……………………………...………. 207

LIV SUBJECT INDEX 57 KAN. APP. 2d

PAGE

Governmental Immunity—Discretionary Function Immunity in K.S.A. 75-6104(e). The discretionary function immunity in K.S.A. 75-6104(e) protects the choice among otherwise reasonable options. So a government agent cannot be successfully sued for selecting one reasonable course of action over other reasonable approaches, although one of the discarded approaches arguably might have been better. The method of choosing among them or exercising that discretion is shielded, even if the method is largely unstudied, wholly arbitrary, or abused. The immunity does not protect a government agent's choice of a patently unreasonable or plainly wrongful course of conduct over other options. Estate of Randolph v. City of Wichita ………….…………………….. 686*

— Exception to Discretionary Function Immunity. If a policy or procedure dictates a precisely defined course of conduct or result, then discretionary function immunity under K.S.A. 75-6104(e) cannot apply for the very reason that the policy or procedure necessarily precludes choosing among options or the exercise of what would be protected discretion. Estate of Randolph v. City of Wichita ……………….……………….. 686*

Intentional Infliction of Emotional Distress or Tort of Outrage Claim— Requirements. A claim for the intentional infliction of emotional distress or the tort of outrage requires: (1) the defendant act intentionally or in reckless disregard of the plaintiff; (2) the actions must be "extreme and outrageous"; (3) the plaintiff has to experience "extreme and severe" mental distress; and (4) the plaintiff's mental distress has to be causally connected to the defendant's actions. The wrongdoer need not intend to cause the victim emotional distress. Rather, the tort requires that the intentional conduct so far exceed societal norms that it may be fairly characterized as exceptionally vile, reprehensible, or intolerable. Estate of Randolph v. City of Wichita ……………………………….. 686*

Intentional Torts Law Incorporates Transferred Intent or Liability. The law governing intentional torts incorporates transferred intent or liability so that a person intending to commit an assault or battery against one individual may be liable if he or she causes actionable harm to someone other than the intended victim. Estate of Randolph v. City of Wichita …………………….………….. 686*

Kansas Tort Claims Act—Act Makes Municipal Liability the Rule and Immunity the Exception. The Kansas Tort Claims Act strips away sovereign immunity and makes government entities and their employees liable for their negligent and otherwise tortious conduct to the same extent as their private sector counterparts, subject to a set of specific statutory immunities. Municipal liability is the rule and immunity the exception. As a general matter, the immunities are to be narrowly construed consistent with the overarching rule of governmental liability. Estate of Randolph v. City of Wichita ……………………………….... 686*

— Adoptive Immunity Does Not Incorporate Qualified Immunity. The Kansas Tort Claims Act immunity in K.S.A. 75-6104(i) incorporates or

57 KAN. APP. 2d SUBJECT INDEX LV

PAGE

adopts immunities originating in some other legal source that apply to the claim being litigated. Adoptive immunity does not extend qualified immunity afforded government agents for alleged violations of federal statutory or constitutional law to state law tort claims for assault or battery. Estate of Randolph v. City of Wichita …………………………………...….….. 686*

Kansas Tort Claims Act—Governmental Liability if Act Caused by Employee Acting within Scope of Employment. The Kansas Tort Claims Act provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment." K.S.A. 75-6103(a). Un- der the Kansas Tort Claims Act, governmental liability is the rule and immunity the exception. The burden is on the governmental entity to establish immunity under one of the statutory exceptions in K.S.A. 75-6104. Hender- son v. Board of Montgomery County Comm'rs ……………..……… 818*

— Governmental Party's Burden of Proof. Immunity under the Kansas Tort Claims Act constitutes a legal avoidance of or affirmative defense to liability, so the governmental party asserting an immunity bears the burden of proving its applicability at trial. Estate of Randolph v. City of Wichita ……………………….……….. 686*

— Officer's Decision in This Case within Discretionary Function Ex- ception. Under the circumstances of this case, a law enforcement officer's decision to return fire at a fleeing felon falls within the discretionary function exception in K.S.A. 75-6104(e). That discretion is not defeated by Fel- ony High Risk Vehicle Stop guidelines. Henderson v. Board of Montgomery County Comm'rs ………………………………………………..…… 818*

Negligence—Two-Year Statutory Limitation to File Claim. Under K.S.A. 60-513(a)(4), a plaintiff must commence his or her negligence claims within two years from the date of the negligent act. Foxfield Villa Assocs. v. Robben ……………………………....……… 122

Negligent Infliction of Emotional Distress—Requires Physical Harm and Emotional Distress. Individuals may recover for the negligent infliction of emotional distress only if they have also suffered near contemporaneous physical harm distinct from common physical symptoms of the claimed emotional distress. Estate of Randolph v. City of Wichita ……...…….. 686*

Negligent Misrepresentation—Elements. To state a claim for negligent misrepresentation, a plaintiff must allege that (1) defendant failed to exercise reasonable care in obtaining or communicating false information, (2) plaintiff relied on the information that defendant supplied for their benefit and guidance, and (3) plaintiff suffered damages in a transaction that defendant intended to influence. Florez v. Ginsberg ……………………. 207

Proof of Defamation—Elements. To prove defamation, the plaintiff must prove knowingly false and defamatory words that are communicated to someone else and that injure the reputation of the person defamed. State v. Smith ……………………………………………..……………. 312

LVI SUBJECT INDEX 57 KAN. APP. 2d

PAGE

Use of Force or Deadly Force—Self-defense an Avoidance for Dam- ages—Defendant's Burden of Proof. A person threatened with physical harm has a right to respond with a display of force or the actual use of force including, in certain circumstances, deadly force. The response, however, must be reasonably calibrated to the apparent harm. Self-defense is an avoidance in a civil action for damages, so the defendant relying on it bears the burden of proof. Estate of Randolph v. City of Wichita ……….….. 686* TRIAL:

Failure to Prove Juror Misconduct or Prejudice Is Negative Finding— Appellate Review. A district court's conclusion that a party failed to prove either juror misconduct or prejudice is a negative finding. An appellate court will only overturn a negative finding when the district court arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice to reach its decision. King v. Casey's General Store …………………………………..……. 392

Grant or Denial of Motion for New Trial—Allegations of Juror Mis- conduct—Appellate Review. An appellate court reviews a district court's grant or denial of a motion for new trial for an abuse of discretion. An appellate court will not find that a district court abused its discretion in denying a motion for new trial based on allegations of juror misconduct unless the party asserting the error can show (1) the presence of juror misconduct and (2) that the misconduct substantially prejudiced his or her right to a fair trial. King v. Casey's General Store …………………..………………. 392

Juror Misconduct—Burden to Prove Misconduct and Prejudice. In most civil cases, the person asserting juror misconduct has the burden to prove both that misconduct occurred and that he or she was prejudiced by the problematic activity. When a juror provides a false answer to a material question during voir dire, however, a party need not separately prove that the conduct undermined the fairness of the trial. Instead, the juror's false answer itself is prejudicial, as it deprived the parties of the opportunity to question him or her further on that point, to seek to dismiss the juror for cause, or to remove the juror with a peremptory strike. King v. Casey's General Store ……………………………..…………. 392

Jury Instructions—Appellate Review. When analyzing jury instruction issues, an appellate court follows a three-step process. First, the court must determine whether it can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal. Second, it must consider the merits of the claim to determine whether legal or factual errors occurred below. And third, if there is error, it must assess whether the error requires reversal, i.e., whether the error can be deemed harmless. In re Care & Treatment of Quillen ………………………… 407

Jury Trial—Juror Misconduct—Proof. Juror misconduct must be based on more than the failure to volunteer information a potential juror speculates is important to counsel. King v. Casey's General Store ……………..... 392

57 KAN. APP. 2d SUBJECT INDEX LVII

PAGE

— Jury Selection Process. The jury selection process allows the parties and the court an opportunity to ask questions about potential jurors' back- grounds, viewpoints, and proclivities in an effort to ensure the individuals who serve on the jury perform their role impartially and render a verdict based on the evidence presented. King v. Casey's General Store ….……. 392

Premeditation, Deliberation, and Intent Inferred from Facts of Case. The State is not required to present direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Kane ……………………………..….… 522

Sufficiency of Evidence—Appellate Review. When a defendant challenges the sufficiency of the evidence presented at trial, appellate courts defer to the jury's apparent factual findings by reviewing the evidence in the light most favorable to the prosecution. An appellate court will not set aside a conviction for insufficient evidence if the court is convinced a rational fact- finder could have found the defendant guilty beyond a reasonable doubt. State v. Kane …………………………………………………..………. 522

— — For the evidence to be sufficient to support a challenged conviction, there must be evidence presented at trial to support each element of the crime. State v. Kane …………………………………..……….…....…. 522

VENUE:

Kansas Fairness in Private Construction Contract Act—Venue in County Where Real Property Is Located. The Kansas Fairness in Private Construction Contract Act, K.S.A. 16-1801 et seq., provides in K.S.A. 16- 1806 that the venue for any action to enforce the Act shall be in the county where the real property is located. Parties to any construction contract covered by the Act cannot agree to a different venue. Wheatland Contracting v. Jaco General Contractor, Inc. ………...….. 236

WORKERS COMPENSATION:

Accident Arising Out of and In Course of Employment—Question of Fact. The question of whether an accident arises out of and in the course of employment is a question of fact. Johnson v. Stormont Vail Healthcare …………………………….……... 44

Accident or Injury Arising Out of Neutral Risk without Particular Em- ployment—Not Compensable under Act. By law, an accident or injury which arose out of a neutral risk with no particular employment or personal character cannot arise out of and in the course of employment in order to be compensable under the Workers Compensation Act. Johnson v. Stormont Vail Healthcare …………………………………... 44

Burden of Proof on Worker—Injury Arises Out of Worker's Employ- ment. To receive a workers compensation award, the law places the burden

LVIII SUBJECT INDEX 57 KAN. APP. 2d

PAGE

on the worker to prove that the injury arises out of and in the course of the worker's employment. Johnson v. Stormont Vail Healthcare ………….. 44

Claimant's Right to Compensation—Employer's Burden of Proof to Show Statutory Defense or Exception. Once the claimant has met the burden of proving a right to compensation, the employer may seek relief from liability based on any statutory defense or exception. The employer then has the burden of proof on any claimed defenses or exceptions. Johnson v. Stormont Vail Healthcare …………………………..……….….. 44

Determination Whether Injury Arose Out of Employment—Activity Must Be Connected to Job Performance. In deciding whether an injury arises out of employment, the focus of inquiry should be on whether the activity that results in injury is connected to, or is in, the performance of the job. Johnson v. Stormont Vail Healthcare ……………………………………………..….... 44

Findings of Fact by Workers Compensation Board—Appellate Review. Upon appellate review, determining whether the Board's findings of fact are supported by substantial competent evidence is a question of law. Johnson v. Stormont Vail Healthcare ………………………………….….. 44

Payment of Compensation Award—No Demand until Payment Due. K.S.A. 44-512a does not allow a claimant to demand payment of a compensation award, or seek a penalty for nonpayment of an award, until payment has become due. Aikins v. Gates Corp. ……………………..…………..…… 875*

— No Stay of Payments Needed During Review of Award. There is no need for a stay of payment obligations during the Workers Compensation Appeals Board's review of an award under K.S.A. 2019 Supp. 44-551 because no payments are yet due. Aikins v. Gates Corp. …………………………………………….……… 875*

— Right to Action When Award Is Final. The right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Workers Com- pensation Appeals Board. This structure allows the Board to conduct its review, and alter any award accordingly, before an employer's payment obligations begin. Aikins v. Gates Corp. …………..………………………………… 875*

— Three Possibilities When Award Payable. Under K.S.A. 2019 Supp. 44- 551, there are three possibilities when an award could become payable: (1) If any party seeks review by the Workers Compensation Appeals Board, the Board must issue its decision within 30 days of when the parties submit arguments; payment becomes due when the Board issues its decision on the award. (2) If the Board does not issue its decision within 30 days of the parties' arguments to the Board, payments for any medical or disability compensation must begin on the 31st day after argument. (3) If no party seeks the Board's review of an ALJ's award, that award becomes due after the time for seeking review expires. Aikins v. Gates Corp. …………………………………………….……… 875*

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PAGE

Timely Payments of Awards for Workers' Injuries—Claimant May Apply for Civil Penalty. To ensure the timely payment of awards for workers' injuries, K.S.A. 44-512a provides an avenue for claimants to apply for a civil penalty when payments are overdue. When compensation has been awarded but not paid when due, a claimant may demand payment from the employer or the employer's insurance carrier. If the employer refuses to pay the award or fails to pay the award within 20 days of the claimant's demand, the claimant shall be entitled to a civil penalty. Aikins v. Gates Corp. ……………………..……….. 875*

VOL. 57 COURT OF APPEALS OF KANSAS 633

State v. Lamb

___

No. 117,861

STATE OF KANSAS, Appellee, v. DEIJAUN D. LEANNDRE LAMB, Defendant, (PATTRICK TOWNER), Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Mootness Doctrine—Court Recognized Excep- tions. An appellate court should consider a case that would otherwise be moot if it (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition.

2. CONTEMPT—Contempt Finding for Failure to Testify in a Case—Issue Subject to Repetition. A contempt finding for failure to testify in a case that is subsequently dismissed without prejudice is an issue subject to repetition in light of the fact that the case may be refiled and the witness again required to testify.

3. CRIMINAL LAW—Compulsion Defense—Proffer of Evidence to Support Defense on Appeal. To present a compulsion defense, just like any other defense, there must be evidence to support it. And if the district court refuses to allow the introduction of a litigant's evidence related to the defense, the litigant must make a proffer of the evidence to preserve the issue on appeal.

4. JUDGES—Witness Has Affirmative Duty to Inform Court of Threats. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness. The witness has the affirmative duty to inform the appropriate authorities and the court of any threats.

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed January 10, 2020. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.

ARNOLD-BURGER, C.J.: The State of Kansas charged Deijaun D. Leanndre Lamb with the murder of Geovani Plakio and the attempted murder of Pattrick Towner. Towner was called to testify at Lamb's preliminary hearing and identify Lamb as the shooter. Deputies transported Towner and Lamb to the courthouse together and then placed

634 COURT OF APPEALS OF KANSAS VOL. 57

State v. Lamb them in the same holding cell. When called to the stand, Towner refused to testify. The district court explained to Towner that the court could hold Towner in contempt if he refused to testify and gave him several opportunities to answer the State's questions. Towner refused to do so. The district court held Towner in contempt and sentenced him to six months' imprisonment. On appeal, Towner argues he was threatened into not testifying and the district court erred by not holding an in camera hearing, without Lamb present, so that Towner could explain why he was not testifying. Because we find that a judge has no duty to sua sponte hold an in camera hearing to determine if a witness is fear- ful to testify when the witness makes no such request, we affirm the district court's order finding Towner in direct criminal contempt of court.

FACTUAL AND PROCEDURAL HISTORY

In October 2016, the State charged Lamb with first-degree murder for the killing of Plakio and the attempted killing of Towner and Dominique Lee Boyles. According to the probable cause affidavit, Towner—during two interviews with police—stated that he was driving the car in which Plakio was shot, that he witnessed the shooting, and that Lamb killed Plakio. At Lamb's preliminary hearing, Towner denied knowing Lamb and said that he would not be able to identify him if he saw him on the street. The prosecutor asked the court to recess so that she could speak with Towner outside the courtroom. The court granted the request. After returning to court, the prosecutor once again asked Towner whether he knew Lamb. Towner replied that he did not "want to get involved with this case, so I'll just leave it at that." Towner stated that he was refusing to testify. The prosecutor asked the district court to hold Towner in contempt. The court asked Towner's attorney whether Towner had any Fifth Amendment privilege that would allow him to not testify. Towner's attorney replied that he was unaware of any privilege. After Towner spent some time speaking with his attorney, the court ordered Towner to testify and asked whether he understood that the court could hold him in contempt for refusing to do so. The court informed Towner that he could be held in jail for up

VOL. 57 COURT OF APPEALS OF KANSAS 635

State v. Lamb to six months if there was a contempt proceeding and the court found him guilty. Towner stated that he understood but again refused to testify. The court gave Towner another opportunity to testify but he refused to do so. The court found Towner in contempt and ordered him incarcerated. The court continued the case a few days and at the next hearing Towner was again called to testify. After speaking with his attorney, Towner told the court that he was "just going to stay in contempt of Court." The court ordered that deputies return Towner to jail. Lamb's attorney moved to dismiss the charges. The prosecutor asked for a continuance to try to convince Towner to cooperate. The prosecutor informed the court that she had spoken with Towner the night before he was called to testify at the first hearing and that then he was willing to testify. But on the way to his first appearance to testify, deputies transported Towner from jail to the courthouse in the same vehicle as Lamb and then placed him in a holding cell in the courthouse with Lamb. The prosecutor believed that Towner had been threatened by someone into not testifying against Lamb, but she could not present any evidence to support her belief. The court agreed to continue the case a few more days to give Towner another chance to purge himself of the contempt. At the final hearing, Towner refused to testify and asked to remain in contempt of court. The court found a lack of probable cause against Lamb and dismissed the case without prejudice. Towner appeals the court's order of contempt.

ANALYSIS

On appeal, Towner argues the district court erred by failing to provide an in camera hearing, outside Lamb's presence, for Towner to explain why he would not testify. But before we get to the merits of his claim, we must determine whether procedural bars prevent us from reaching the merits. The State asserts that Towner's appeal is moot and that, even if it is not, the court cannot consider issues raised for the first time on appeal.

Towner's appeal is not moot.

The parties agree that Towner has completed his six-month sentence for contempt. The court can dismiss an appeal as moot if

636 COURT OF APPEALS OF KANSAS VOL. 57

State v. Lamb

'""it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights."'" State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014). The State argues that because Towner has completed his sentence any judgment entered on his behalf would be ineffectual. Because mootness is a doctrine of court policy, which is rooted in court precedent, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). Twenty-five years ago, this court addressed whether an appeal is moot because the appellant has finished serving his or her sentence for contempt. In State v. Flanagan, 19 Kan. App. 2d 528, 529-30, 873 P.2d 195 (1994), we found that such an appeal is not moot. The court reasoned:

"[T]he judicial system is an integral part of American life, and a criminal contempt conviction cannot help but affect a defendant's life if he or she appears before a judge who becomes aware of that conviction. That fact, and other possible collateral consequences of this conviction, are too obvious to declare this appeal moot simply because defendant cannot be subjected to additional jail time." 19 Kan. App. 2d at 529-30.

The State argues that despite the court's concerns in Flanigan, a contempt citation is not a criminal conviction, nor does it appear on a defendant's criminal history. Any collateral consequences that may result are speculative at best. Towner simply asks us to follow the lead of Flanigan. He fails to advise us of any specific collateral consequences that may result from the court's contempt finding. Generally, appellate courts in Kansas do not decide moot questions or render advisory opinions. State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012). But because the mootness doctrine is court made, it is also subject to court-recognized exceptions which have been judicially created since Flanigan. An appellate court should consider a case that would otherwise be moot if it "(1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition." State v. Hollister, 300 Kan. 458, 458-59, 329 P.3d 1220

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State v. Lamb

(2014). Towner fails to assert the application of any of the exceptions. Even so, because we are not convinced that there are any ongoing consequences that may result from the district court's finding of contempt, the first two exceptions do not apply. But we are concerned that this issue may be subject to repetition, not only in other similar cases in the future—albeit rare—but it could be repeated in this case. The charges against Lamb were dismissed by the court without prejudice following a preliminary hearing. If the State is somehow able to offer Towner protection or gather additional evidence beyond Towner's statements to police, it could re- file the murder charges. See K.S.A. 2018 Supp. 21-5107(a) (no time limitation on the filing of murder charges). Towner could be back in the same position. As a result, this case is not moot.

Towner has preserved his claim of error.

Towner raises only one claim of error on appeal. He argues that because the court had information from the prosecutor that suggested Towner was being threatened by Lamb, the court had a duty to discuss the issue with Towner in camera before finding him in contempt. Towner's attorney was with him each time the court ordered him to testify and Towner refused. His attorney spoke to him outside the presence of the judge and prosecutor both times. At no time did Towner request an in camera discussion with the judge. The State argues that Towner has failed to preserve this issue for appeal because there was no contemporaneous request made to discuss the reasons for his refusal with the court. Towner responds by framing this as solely a sufficiency of the evidence claim which he can raise for the first time on appeal, citing State v. Farmer, 285 Kan. 541, Syl. ¶ 1, 175 P.3d 221 (2008) ("There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve the question for appeal."). The law in Kansas is clear. "If the issue was not raised below, there must be an explanation why the issue is properly before the court. A party failing to explain why an issue being raised for the first time on appeal is properly before the court risks having that issue deemed waived or abandoned." Williams, 298 Kan. 1075,

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State v. Lamb

Syl. ¶ 4. But we are willing to accept Towner's position that his claim is more like a sufficiency of the evidence argument than an evidentiary error. In essence, he argues that because the judge disregarded that he was under duress and did not provide Towner a safe environment to set forth his defense, the evidence was insufficient to find him in contempt. Although we agree this is a close call on whether Towner properly preserved his claim of error, we are willing to proceed to the merits given the possibility that Towner could be in the same position, in this case, in the future.

The district court did not err in holding Towner in contempt of court.

Towner does not dispute that he refused to follow a court order. Instead, he argues the district court should have provided him with a chance to explain his fear without Lamb present. Towner also does not challenge the actual sanction imposed, six months in jail. Accordingly, we review de novo whether the alleged conduct was contemptuous given all the circumstances. State v. Gonzalez, 290 Kan. 747, 754, 234 P.3d 1 (2010). There are at least three reasons Towner's claim of error fails.

1. Towner failed to make a proffer of the evidence he wanted the court to consider.

Compulsion is a statutory defense in Kansas.

"(a) A person is not guilty of a crime other than murder or voluntary man- slaughter by reason of conduct which such person performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if such person reasonably believes that death or great bodily harm will be inflicted upon such person or upon such person's spouse, parent, child, brother or sister if such person does not perform such conduct. "(b) The defense provided by this section is not available to a person who intentionally or recklessly places such person's self in a situation in which such person will be subjected to compulsion or threat." K.S.A. 2018 Supp. 21-5206.

To present a compulsion defense, just like any other defense, there must be evidence to support it. And if the court refuses to allow the introduction of a litigant's evidence related to the defense, the litigant must make a proffer. In other words, the party must show the court what the party would present if the court were

VOL. 57 COURT OF APPEALS OF KANSAS 639

State v. Lamb to allow the evidence. See K.S.A. 60-405 (no decision can be "reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers"). A defendant's failure to proffer excluded evidence makes it impossible for an appellate court to determine whether a legally erroneous exclusion was harmless. State v. Redick, 307 Kan. 797, Syl. ¶ 4, 414 P.3d 1207 (2018). Towner essentially asserts that the court should have allowed him to proffer evidence, in camera, to the court about his defense of compulsion. But neither he nor his attorney ever requested to do so, even though the court gave them several opportunities to talk outside the presence of Lamb. The judge implored Towner, "Do you have any other reason, other than the fact that that you do not wish to be involved in this case?" (Emphasis added.) Towner replied, "No, your honor." His failure to make a proffer is fatal to his claim of error.

2. The cases Towner summarily relies on do not support his position.

It is essential when a litigant cites cases in an appellate brief in support of his or her position that the cases support the litigant's position. Towner cites three federal cases to support his argument. But on close review the cases do not favor Towner. We will examine each. A federal district court held Mark Gravel in contempt for his refusal to testify before a grand jury. In re Grand Jury Proceed- ings, 605 F.2d 750, 751 (5th Cir. 1979). Gravel explained, during an in camera discussion with the judge, that he would not testify because he was being actively threatened. On appeal, the court held that the district court did not err in finding Gravel in contempt. Even if the court considered fear to be a legitimate factor against a finding of contempt, it did not find that Gravel had raised a sufficient defense. 605 F.2d at 752-53. The government had offered to protect Gravel and he had refused the protection, instead choosing to not testify. Gravel's case does not hold that a court

640 COURT OF APPEALS OF KANSAS VOL. 57

State v. Lamb must recognize fear as an affirmative defense to a finding of contempt. It simply holds that the evidence was insufficient to support his defense given the State's offer of protection. The Fifth Circuit Court of Appeals also distinguished duress as a reason for the refusal to testify versus duress as a mitigation factor in determining a sanction. 605 F.2d at 752-53. "In both civil and criminal contempt cases this circuit has held that fear for personal and family safety is not a defense to a charge arising from refusal of a witness to testify. We have, however, held that such fear is a legitimate factor in mitigation." 605 F.2d at 752. In United States v. Patrick, 542 F.2d 381, 386-88 (7th Cir. 1976), the appellate court held duress could be a defense to contempt but that Leonard Patrick failed to present evidence supporting his case. According to Patrick, he and his family were threatened about his possible testimony. But the court noted: "Patrick made no attempt to inform the court as to his fears, the basis therefor, and the steps he had taken to alleviate the alleged danger so that he might comply with the law." 542 F.2d at 388. The court cited with approval the Tenth Circuit Court of Appeals opinion in Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935). Pat- rick, 542 F.2d at 388.

"'Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion.'" 542 F.2d at 386-87.

The court noted: "'[A] veiled threat of future unspecified harm . . . is not the equivalent of an immediate threat of death or severe bodily injury.'" Patrick, 542 F.2d at 388. The third and final case Towner relies on found that fear for personal or family safety is a mitigating factor when determining the sentence for a contempt, but that "[f]ear for personal and family safety . . . is no defense to the crime of refusing to testify." United States v. Gomez, 553 F.2d 958, 959 (5th Cir. 1977). None of these cases support Towner's argument. Like the defendant in Patrick, Towner failed to inform the court of his fears. See Patrick, 542 F.2d at 388. Without informing the court or State, Towner cannot expect an offer of protection like the defendant in

VOL. 57 COURT OF APPEALS OF KANSAS 641

State v. Lamb

In re Grand Jury Proceedings. Even if Towner did inform the court or State that someone had threatened him and the State failed to extend an offer of protection, that does not mean that the court could not hold Towner in contempt for his refusal to testify. See In re Grand Jury Proceedings, 605 F.2d at 752-53 (fear for personal and family safety is not a defense to a charge arising from refusal of a witness to testify). A witness has a responsibility to "take the reasonable steps available in an attempt to extricate himself from the apparent danger." Patrick, 542 F.2d at 388. This includes an affirmative duty to inform the appropriate government authorities and the court of the threat. 542 F.2d at 388. Although the prosecutor suspected Towner was being threatened, she had no proof. And Towner refused to provide any. Finally, the district court cannot be expected to consider whether threats against Towner should lead to a lighter sentence for contempt when Towner did not inform the court that he was threatened. See Gomez, 553 F.2d at 959. Even so, Towner does not challenge the sanction here, only the sufficiency of evidence for the finding of contempt. In sum, because Towner presents no caselaw to support his claims, we must conclude there is none.

3. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness.

Towner believes it was error for the judge to take "no action to ensure that Towner was not refusing to testify due to threats from Lamb." Yet Towner presents no authority for this central proposition—that a judge must independently and sua sponte mar- shal the resources necessary for a witness to claim a defense of duress or coercion, particularly when, as here, the witness has his own legal counsel at each hearing. As the State points out, the overwhelming majority of courts to address the issue have held that fear does not provide a basis for a witness' refusal to testify. See Howell v. State, 465 Md. 548, 563 n.13, 214 A.3d 1128 (2019) (citing 12 cases from 12 jurisdictions). So necessarily, a requirement that the court sua sponte investigate whether a witness is being placed in fear would serve no purpose. As the Seventh Circuit Court of Appeals stressed in Patrick, it is the witness who has the affirmative duty to inform the appropriate government authority and the court of any threats. 542 F.2d at 388.

642 COURT OF APPEALS OF KANSAS VOL. 57

State v. Lamb

The district court's decision finding Towner in direct criminal contempt of court is affirmed.

Affirmed.

VOL. 57 COURT OF APPEALS OF KANSAS 643

State v. McCroy

___

No. 120,783

STATE OF KANSAS, Appellant, v. PATRICK M. MCCROY, Appellee.

___

SYLLABUS BY THE COURT

1. APPELLATE PROCEDURE—Statutory Right to Appeal. Under Kansas law, the right to appeal is entirely statutory. Thus, appellate courts do not have discretionary power to entertain appeals from all district court orders. Rather, the contours of appellate jurisdiction are defined by statute.

2. JURISDICTION—Jurisdiction of Appellate Courts—Statutory Time Limi- tations. Appellate courts only have jurisdiction to hear an appeal by the State if it is taken within the time limitations and in the manner prescribed by the statutes defining appellate jurisdiction.

3. SAME—Appellate Jurisdiction in Civil and Criminal Courts. K.S.A. 60- 2101 is the starting point for the inquiry into appellate jurisdiction in both civil and criminal cases. K.S.A. 60-2101(a) dictates that "[a]ppeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22-3601 and 22-3602."

4. APPELLATE PROCEDURE—State's Right to Appeal Restricted by Stat- ute. K.S.A. 22-3602 distinguishes between the appellate rights of defendants and the prosecution. While a criminal defendant has a broad right of appellate review, the State only has a limited right to appeal tightly restricted by statute.

5. JURISDICTION—Appellate Court's Authority to Hear Case. Jurisdiction defines an appellate court's authority to hear a case. When the record discloses a lack of jurisdiction, this court must dismiss the appeal.

6. CRIMINAL LAW—Sentencing—Motion to Correct Illegal Sentence. K.S.A. 22-3504 is not an appellate jurisdiction statute; it is contained in Article 35 of our code of criminal procedure, which governs posttrial motions.

7. SAME—Sentencing—Motion to Correct Illegal Sentence—Either Party Can Raise at Any Time. Kansas courts have interpreted K.S.A. 22-3504 to allow either party to challenge the legality of a sentence at any time, including for the first time on appeal, because the legality of a sentence (1) can be challenged at any time and (2) is a question of law subject to de novo review.

8. JURISDICTION—Court's Power to Hear Appeal vs. Party's Ability to Raise Claim First Time on Appeal. There is a distinction between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to

644 COURT OF APPEALS OF KANSAS VOL. 57

State v. McCroy

hear the appeal in the first place. The ability to raise a claim generally encompasses considerations of notice, preservation, and timeliness. Jurisdic- tion defines a court's power to consider an appeal at all, regardless of the issues raised.

9. CRIMINAL LAW—Motion to Correct Illegal Sentence—Appellate Court's Jurisdiction from K.S.A. 22-3602. K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court's jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602.

10. APPELLATE PROCEDURE—Supreme Court Precedent—Court of Ap- peals Required to Follow Precedent—Exception. The Court of Appeals is duty-bound to follow Kansas Supreme Court precedent unless the court is convinced, based on recent decisions by the state's highest court, that a decision no longer accurately reflects Kansas law.

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 10, 2020. Appeal dismissed.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.

Shannon S. Crane, of Hutchinson, for appellee.

Before MALONE, P.J., STANDRIDGE and WARNER, JJ.

WARNER, J.: An appellate court derives its authority to hear a case from statute. In the criminal context, Kansas jurisdictional statutes differentiate between the broad range of cases where a defendant may appeal his or her convictions and sentence and the limited circumstances where the State may challenge the outcome below. In either situation, if a case comes before us that is outside our jurisdiction, we must dismiss the appeal. In this case, the State appeals the district court's order sanc- tioning Patrick McCroy with a second 180-day prison term after he violated the terms of his probation. The State argues that because Kansas law only contemplates one 180-day sanction for a probation violation, the second sanction was an "illegal sentence." McCroy contends this court lacks jurisdiction to consider the State's appeal, as it is not authorized by K.S.A. 22-3602 or any other appellate jurisdiction statute. We agree and dismiss.

VOL. 57 COURT OF APPEALS OF KANSAS 645

State v. McCroy

FACTUAL BACKGROUND

In 2015, Patrick McCroy was convicted of aggravated robbery and aggravated burglary. The district court sentenced McCroy to a 216-month prison sentence, but then suspended that sentence and ordered him to serve 36 months of probation. Over the next three years, McCroy violated the conditions of his probation on at least two occasions. In January 2016, McCroy tested positive for methamphetamine and failed to report to his probation officer. The next month, the State moved to revoke McCroy's probation. At the hearing, the district court, which handled two separate cases involving McCroy, revoked his probation and ordered him to serve a 180- day prison sanction, to run consecutively to a 34-month prison term in the other case. In 2018, McCroy again violated the terms of his probation. The State moved to revoke probation and impose the underlying sentence. The district court held a hearing where McCroy stipulated to violating his probation. The district court ordered another 180-day sanction. Although the State did not believe K.S.A. 2018 Supp. 22-3716 contemplated a second 180-day prison sanction for a probation violation, it did not file a motion to correct the district court's order. Instead, it filed a notice of appeal, claiming the court's sanction was an "illegal sentence." McCroy claims this court lacks jurisdiction to hear the State's appeal.

DISCUSSION

Under Kansas law, the right to appeal is "entirely statutory." Harsch v. Miller, 288 Kan. 280, Sy1.¶ 3, 200 P.3d 467 (2009); see also Flores Rentals v. Flores, 283 Kan. 476, Syl. ¶ 3, 153 P.3d 523 (2007) (recognizing that the right to appeal is "neither a vested nor constitutional right"). As a corollary of this principle, "appellate courts do not have discretionary power to entertain appeals from all district court orders." Flores Rentals, 283 Kan. at 481. Rather, the contours of our jurisdiction are defined by statute. State v. LaPointe, 305 Kan. 938, 942, 390 P.3d 7 (2017); State v. Mo- ses, 227 Kan. 400, Syl. ¶ 7, 607 P.2d 477 (1980). That is, this court only has jurisdiction to hear an appeal by the State if it is taken

646 COURT OF APPEALS OF KANSAS VOL. 57

State v. McCroy within the time limitations and in the manner prescribed by the statutes defining appellate jurisdiction. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). K.S.A. 60-2101 is the "starting point" for the inquiry into appellate jurisdiction in both civil and criminal cases. LaPointe, 305 Kan. at 942. Relevant here, K.S.A. 60-2101(a) dictates that "[a]ppeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22-3601 and 22-3602." The first of these provisions, K.S.A. 22-3601, generally divides the power to hear various criminal appeals between the Court of Ap- peals and Kansas Supreme Court. The second statute, K.S.A. 22- 3602, defines the defendant's and the State's respective rights to appeal. Because the issue in this case concerns not where this appeal should be heard, but whether the State has a right to appeal the district court's decision at all, K.S.A. 22-3602 governs our analysis. K.S.A. 22-3602 distinguishes between the appellate rights of defendants and the prosecution. While a "criminal defendant has a broad right of appellate review," the State "only has limited appeal rights tightly restricted by statute." State v. Berreth, 294 Kan. 98, Syl. ¶ 3, 273 P.3d 752 (2012). Compare K.S.A. 2018 Supp. 22-3602(a) (recognizing the defendant's right to appeal "from any judgment") with K.S.A. 2018 Supp. 22-3602(b) (defining the State's right to appeal in certain enumerated circumstances "and no others"). K.S.A. 2018 Supp. 22-3602(b) delineates four limited instances in which the State has a right to appeal:

"(1) From an order dismissing a complaint, information or indictment; "(2) from an order arresting judgment; "(3) upon a question reserved by the prosecution; or "(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime."

See also K.S.A. 2018 Supp. 22-3602(f) (authorizing appeals by the defendant and the State as provided under K.S.A. 2018 Supp. 21-6820, which allows appeals of certain departure sentences under the sentencing guidelines from a "judgment or conviction").

VOL. 57 COURT OF APPEALS OF KANSAS 647

State v. McCroy

K.S.A. 2018 Supp. 22-3602(b) provides the State the right to appeal in these circumstances "and no others." In recent decisions, our Kansas Supreme Court has emphasized the importance of this statute's jurisdiction-defining parameters. For example, appellate courts read defendants' notices of appeal broadly in criminal cases, but "[w]hen the State is entitled to appeal, it must elect to proceed under a specific statute or statutory subsection, and its election governs the remedy, if any, available." Berreth, 294 Kan. 98, Syl. ¶ 4. And the court has employed a more exacting examination of the listed avenues by which the State may appeal. E.g., LaPointe, 305 Kan. at 944 (appeals of questions reserved must be issues of statewide importance); State v. Barlow, 303 Kan. 804, 810-11, 368 P.3d 331 (2016) (State's appeal from a judgment of acquittal, as compared to an arrest of judgment, limited the remedy available if the appeal were successful). Whether jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). And because jurisdiction defines our authority to hear a case, when the record discloses a lack of jurisdiction, this court must dismiss the appeal. State v. Delacruz, 307 Kan. 523, 529, 411 P.3d 1207 (2018). Here, the State's notice of appeal provided no statutory basis for its appeal, but merely stated that the prosecution "appeals from the Court's ruling and Defendant's sanction by the Reno County District Court on February 8, 2019." But see Berreth, 294 Kan. 98, Syl. ¶ 4 (requiring the State's notice of appeal to set forth with particularity the statutory authority for the appeal). The State's docketing statement cited K.S.A. 22-3504 (which governs motions to correct illegal sentences) and K.S.A. 2018 Supp. 21-6820 (which discusses appeals from sentences under the Kansas sentencing guidelines) as the statutory bases for the appeal. It did not discuss K.S.A. 22-3602. As a preliminary matter, we note that K.S.A. 2018 Supp. 21- 6820 authorizes appeals from departure sentences under the sentencing guidelines. See also K.S.A. 2018 Supp. 22-3602(f) (authorizing appeals taken under K.S.A. 2018 Supp. 21-6820). Here, the State does not appeal any aspect of McCroy's underlying sentence; that sentence has not been altered since it was originally pronounced. Cf. State v. Edwards, 281 Kan. 1334, 1337, 135 P.3d

648 COURT OF APPEALS OF KANSAS VOL. 57

State v. McCroy

1251 (2006) (K.S.A. 2018 Supp. 22-3504 applies only to "the statute defining the crime and assigning the category of punishment to be imposed"). Instead, the State disputes the district court's choice of sanction after McCroy violated the terms of his probation, a question governed by K.S.A. 2018 Supp. 22-3716, not the sentencing guidelines. K.S.A. 2018 Supp. 21-6820 has no bearing on this appeal. We thus turn to K.S.A. 22-3504. Unlike K.S.A. 60-2101 and K.S.A. 22-3602, K.S.A. 22-3504 is not an appellate jurisdiction statute; rather, it is contained in Article 35 of our code of criminal procedure. Article 35 governs posttrial motions: motions for a new trial, arrests of judgment, and—relevant here—motions to correct an illegal sentence. K.S.A. 2018 Supp. 22-3504(1) states: "The court may correct an illegal sentence at any time." See also K.S.A. 22-3504(a), as amended by L. 2019, ch. 59, § 15 (effective May 23, 2019) ("The court may correct an illegal sentence at any time while the defendant is serving such sentence."). Kansas courts have interpreted this provision to allow either party to challenge the legality of a sentence at any time, including for the first time on appeal, because the legality of a sentence (1) can be challenged at any time and (2) is a question of law subject to de novo review. Ac- cord State v. Gray, 303 Kan. 1011, 1013-14, 368 P.3d 1113 (2016). There is a distinction, however, between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first place. The ability to raise a claim generally encompasses considerations of notice, preservation, and timeliness; none of these carry much weight when a court can correct an illegal sentence at any time. Compare K.S.A. 2018 Supp. 22-3504(1) (a court can correct an illegal sentence at any time) with K.S.A. 2018 Supp. 22-3501(1) and K.S.A. 2018 Supp. 22- 3502 (motions for new trial and motions for arrest from judgment must be filed within 14 days of verdict). Appellate jurisdiction defines our power to consider an appeal at all, regardless of the issues raised. An analogous distinction arises in the context of K.S.A. 60- 1507 cases, when a movant asserts a subject-matter-jurisdiction challenge in a procedurally barred motion. Even though subject- matter jurisdiction—like the legality of a sentence—is a question

VOL. 57 COURT OF APPEALS OF KANSAS 649

State v. McCroy that can be raised at any time, including one a court can raise sua sponte, the Kansas Supreme Court has emphasized that there still "must be a procedural vehicle for presenting the argument to the court." State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013). That is, although preservation is not a barrier to our considering a subject-matter-jurisdiction claim, there must nevertheless be a procedural mechanism that places the question before the appellate court. Challenges to the legality of a sentence generally come before us by way of an appeal from a motion to correct an illegal sentence filed under K.S.A. 22-3504 or as one of many issues raised in a defendant's appeal. The State did not file a motion to correct an illegal sentence in this case. Instead, the State has appealed the sanction the district court imposed at the probation violation hearing, and the sole issue raised is whether that sanction was an illegal sentence. We hold that K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider a State's appeal solely on the claim that a sentence is illegal. Instead, for an appellate court to have jurisdiction, the case must originate from one of the limited procedural postures articulated in K.S.A. 22-3602. That is, as in the case of subject-matter jurisdiction, there "must be a procedural vehicle" that will allow us to review that claim on appeal. See Trot- ter, 296 Kan. at 905. We recognize that the Kansas Supreme Court summarily reached a different conclusion regarding K.S.A. 22-3504 in State v. Scherzer, 254 Kan. 926, 928-930, 869 P.2d 729 (1994). See also State v. Taylor, 262 Kan. 471, 475, 939 P.2d 904 (1997) (rejecting the State's effort to expand its question reserved and stating in dicta that "[a]lthough K.S.A. 22-3504 provides that the court may correct an illegal sentence at any time, this does not relieve the State of its obligation to file an appeal pursuant to K.S.A. 22-3504 and raise the issue"), abrogated on other grounds by Berreth, 294 Kan. 98. Ordinarily, we adhere closely to the rule that the Court of Appeals is duty-bound to follow Kansas Supreme Court precedent. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Here, however, recent decisions of the Kansas Supreme Court indicate the conclusory statements in Scherzer no longer reflect the state of Kansas law.

650 COURT OF APPEALS OF KANSAS VOL. 57

State v. McCroy

In Scherzer, the State appealed an order allowing the defendant to serve his 90 days of imprisonment by house arrest. The court summarily found that jurisdiction existed:

"The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 1993 Supp. 60-2101(b). The court also has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. We have jurisdiction to consider the State's appeal." Scherzer, 254 Kan. at 929-30.

This is the entirety of Scherzer's jurisdictional analysis. Scherzer— unlike recent Supreme Court decisions—did not consider the language of the controlling jurisdictional statutes or start from a premise that a court exercises only the limited jurisdiction defined by law. In- stead, the Scherzer opinion took an expansive view of appellate courts' inherent authority, referencing K.S.A. 60-2101. But K.S.A. 60-2101(a) contextualizes this language in the case of our court, stating: "In any case properly before it, the court of appeals shall have jurisdiction to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse." (Emphasis added.) K.S.A. 60-2101(a). Thus, before an appellate court has authority "to correct, modify, vacate, or reverse any act, order or judgment," Scherzer, 254 Kan. at 929-30, the case must be "properly before it." K.S.A. 60-2101(a). That is, we must first have jurisdiction over the appeal. And K.S.A. 60-2101 limits the jurisdiction of both the Kansas Supreme Court and Court of Appeals in criminal cases to those instances permitted in K.S.A. 22-3601 and K.S.A. 22-3602. See K.S.A. 60-2101(a) (Court of Appeals); K.S.A. 60- 2101(b) (Supreme Court). The Kansas Supreme Court's more recent decisions have rejected this inherent-jurisdictional-authority approach in favor of a statutory analysis. Caselaw emphasizes that the right to appeal "emanates solely from our statutes," and "Kansas appellate courts obtain jurisdiction to entertain an appeal only where the appeal is taken in the manner prescribed by our statutes." State v. Gill, 287

VOL. 57 COURT OF APPEALS OF KANSAS 651

State v. McCroy

Kan. 289, 293-94, 196 P.3d 369 (2008). Our appellate jurisdiction in criminal cases is thus controlled by K.S.A. 60-2101 and K.S.A. 22-3602. In the years since Scherzer was decided, we can find only one appeal brought solely by the State employing Scherzer's jurisdictional principle. See State v. Vanwey, 262 Kan. 524, 941 P.2d 365 (1997). All other cases have involved appeals or cross-appeals by the defendant—and thus do not involve the jurisdictional barrier of K.S.A. 22-3602(b). See, e.g., State v. McCarley, 287 Kan. 167, 195 P.3d 230 (2008) (direct appeal by the State from sentence and cross-appeal by the defendant); State v. Patterson, 257 Kan. 824, 825-26, 896 P.2d 1056 (1995) (appeal by defendant of the denial of his motion to correct an illegal sentence); Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994) (appeal by defendant of the denial of his K.S.A. 60-1507 motion). And as one panel of this court has recognized, Vanwey and Scherzer "address only the statutory scope of jurisdiction but do not vest appellate jurisdiction." State v. Upton, No. 92,326, 2005 WL 1618830, at *2 (Kan. App. 2005) (unpublished opinion). At the same time, the Kansas Supreme Court has not shied away from dismissing appeals for lack of jurisdiction when the State has failed to comply with K.S.A. 22-3602(b) and K.S.A. 22- 3603. E.g., Lapointe, 305 Kan. at 955 (dismissing State's appeal from an order granting DNA testing because it met none of the criteria in K.S.A. 22-3602[b]); State v. Sales, 290 Kan. 130, 141, 224 P.3d 546 (2010) (dismissing State's interlocutory appeal for failure to make showings necessary under K.S.A. 22-3603). See also State v. Herman, 50 Kan. App. 2d 316, Syl. ¶ 4, 324 P.3d 1134 (2014) (dismissing State's appeal on a question reserved when the issue is no longer of statewide interest, and thus not authorized by K.S.A. 22-3602[b]). In short, we no longer believe the sweeping jurisdictional statement in Scherzer reflects the law of this state. Instead, we must limit our exercise of jurisdiction to those situations authorized by statute. The Kansas Legislature is free to amend K.S.A. 22-3602 to allow appeals such as this one. But those policy decisions must be made by statutory enactment, not judicial fiat. Finally, we note that the State has made no effort to present its argument as a question reserved under K.S.A. 22-3602(b)(3).

652 COURT OF APPEALS OF KANSAS VOL. 57

State v. McCroy

We make no finding whether the State's general concerns regarding a second 180-day sanction could be raised in that context. Ac- cord LaPointe, 305 Kan. at 944 (questions reserved must be issues of statewide importance). We merely hold that we do not have jurisdiction—in light of the facts and arguments presented—over the State's appeal from the district court's sanction of McCroy's probation violation in this case. In the absence of any statutory authorization, we must dismiss the case for lack of jurisdiction. State v. Marinelli, 307 Kan. 768, Syl. ¶ 1, 415 P.3d 405 (2018).

Appeal dismissed.

VOL. 57 COURT OF APPEALS OF KANSAS 653

State v. Daino

___

No. 120,824

STATE OF KANSAS, Appellant, v. GIANNI MASSIMO DAINO, Appellee.

___

SYLLABUS BY THE COURT

1. APPELLATE PROCEDURE—Cross Appeal—Failure to Cross-Appeal Bars Prevailing Party from Challenging That Issue. The failure to cross-appeal from an adverse decision by the district court generally bars the prevailing party from challenging the lower court's ruling on that issue.

2. KANSAS CONSTITUTION—Search and Seizure—State Constitution Pro- vides Same Protections as U.S. Constitution. Section 15 of the Kansas Consti- tution Bill of Rights provides the same protection from unlawful government searches and seizures as does the Fourth Amendment to the United States Constitution.

3. SEARCH AND SEIZURE—Consent to Search—State's Burden of Proof. The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search is valid.

4. SAME—Consent under Fourth Amendment—Objective Reasonableness Stand- ard. The standard for measuring the scope of a person's consent under the Fourth Amendment is that of objective reasonableness—what would a reasonable person have understood by the exchange between the officer and the person.

5. SAME—Voluntary Consent—Mere Acquiescence Is Inadequate. Mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent.

6. SAME—Valid Consent to Search—Nonverbal Acts That Are Specific and Unequivocal May Show Consent. A defendant may validly consent for officers to enter his or her apartment by responding nonverbally to the officers' request to enter by acts that are specific and unequivocal, such as by opening the door widely, stepping back, and making a sweeping gesture with his or her hand.

7. SAME—Valid Consent to Search—Verbal Consent Not Required. Consent must be specific and unequivocal, but it need not be verbal. Consent may instead be granted through gestures or other indications of agreement, so long as they are comprehensible enough to a reasonable officer.

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed January 10, 2020. Reversed and remanded.

654 COURT OF APPEALS OF KANSAS VOL. 57

State v. Daino

Kendall Kaut and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Senanem D. Gizaw, of Johnson County Public Defender's Office, for appellee.

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

GARDNER, J.: This is the State's interlocutory appeal from the district court's suppression of evidence taken from Gianni Mas- simo Daino's apartment. The district court found that Daino's actions, in response to the officer's request to enter his apartment, would be found by a reasonable person to indicate his consent for the officers to enter. Yet the district court felt compelled by Kan- sas law to hold that Daino's acts were implied consent, which is not valid. We find that Daino's acts, whether labeled as express consent or implied consent, gave valid consent for officers to enter his apartment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts, as established at the suppression hearing, are not disputed. Olathe police officers were sent to investigate a narcotics odor in an apartment complex. Officers Robert McKeirnan and Kelly Smith responded in uniform and spoke with a male who told them that someone in unit 48 was partying and he could smell marijuana. Before the officers approached that unit, they could smell marijuana but could not tell where the smell was coming from. When the officers arrived at the door of unit 48, they knocked on the door but did not announce themselves. After about a minute, Daino, who was 18, answered the door and opened it 8-10 inches, enough to reveal a part of his body. The officers then noticed an overwhelming odor of fresh marijuana coming from inside Daino's apartment and that there had been a lot of smoking as well. McKeirnan told Daino that he knew there was a lot of marijuana in the apartment because he could smell it, then said: "Well, here's the deal, not a huge deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me step in with you real quick and we will get it figured out, okay?" McKeirnan testified that Daino then "nodded and just said, 'Okay. Let's do this.' And then at that point he opened the door for

VOL. 57 COURT OF APPEALS OF KANSAS 655

State v. Daino me and invited me in." Daino had at first blocked McKeirnan's sight into his apartment, but after McKeirnan requested to enter, Daino "opened up the door completely and stood out of the way so that we could enter." McKeirnan said Daino opened the door about as far as it could go in the apartment. McKeirnan then clarified that he did not recall Daino making any verbal response.

"[THE STATE:] Did the defendant specifically tell you, you could come into the apartment verbally? "[MCKEIRNAN:] Verbally, he did not say, yes, sir, please come in. "[THE STATE:] Did he say anything out loud to you? "[MCKEIRNAN:] Not that I—not that I recall from that day. At that point, he just opened up the door and allowed us into the apartment."

McKeirnan "absolutely" believed Daino was consenting to let him enter his apartment. At counsel's request, McKeirnan stood up and replicated with the swinging door near the witness stand the actions Daino had taken at his door. The district court later detailed McKeirnan's demonstration this way:

"I don't know how to accurately portray this on the record, but when the officer demonstrated what the defendant did in this case, any reasonable person that exists in the United States would have construed his gesture as 'come on in the apartment.' "He opened the door up, and he took his right hand and swung it across his body, and pointed into the apartment. No reasonable person could have construed that as don't come in, or I'm not sure if I want you to come in, or I'm still trying to decide whether I want you to come in. Any reasonable person would have construed that as come on in the apartment. . . . . ". . . I think the officer candidly admitted it, and I appreciated that, that it was nonverbal. It was a gesture."

Smith testified that McKeirnan knocked, Daino answered the door, McKeirnan asked to enter, and Daino opened the door wider and stepped back to let them inside. He believed Daino's acts meant that he was consenting to let them enter his apartment. Daino did nothing then or later to suggest he was somehow withdrawing his consent or limiting it, except for asking them on the "written consent to search" form not to search his roommate's bedroom.

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State v. Daino

The district court also heard an audio recording of the encounter. In that recording, McKeirnan asks, "Let me step in with you real quick and we'll get it figured out, okay?" A voice softly responds "[O]kay." Yet neither party argues on appeal that Daino verbally consented, and neither officer testified about the "okay" or its source at the suppression hearing. We thus disregard it, as do the parties. Once inside the apartment, McKeirnan asked Daino where he kept his marijuana. Daino responded that it was in his bedroom. McKeirnan asked whether he could go to the bedroom to get it, and Daino either nodded or said it was okay. McKeirnan told Daino that as long as it was a little marijuana and some paraphernalia, he would write Daino a ticket and give him a court date. Daino responded, "[I]t's a lot of weed." The officers searched Daino's apartment and found these items:

 Black notebook which appeared to be a ledger for drug sales,  Multiple glass bongs,  Multiple containers with butane honey oil or "shatter" inside,  Five 2mg Alprazolam pills,  15 Amphetamine/Dextroamphetamine pills,  Numerous plastic bags of various sizes,  Digital scale,  Grinder,  Paper roller,  Package of blotter papers,  $363 in cash,  Three strips of paper with confirmed LSD,  27 grams of marijuana, and  2.09 grams of THC.

After seeing the large volume of drugs and paraphernalia in the bedroom, McKeirnan decided not to seize anything and went to his car to get a "consent to search" form. He reviewed that form with Daino, then Daino signed it, permitting the officers to search the apartment except for an absent roommate's bedroom. Officers

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State v. Daino then searched Daino's bedroom and seized the items. Because Daino had such a large volume of marijuana, McKeirnan decided he could not just issue him a citation as he had anticipated. So he arrested Daino and read him his Miranda rights. The State charged Daino with intent to distribute marijuana in violation of K.S.A. 65-4105(d)(17), possession of an amphetamine in violation of K.S.A. 65-4107(d)(1), and possession of drug paraphernalia in violation of K.S.A. 21-5709(b)(1). Daino moved to suppress all evidence, arguing officers had found it in an illegal search in violation of the Fourth Amendment of the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights. At the suppression hearing, the parties agreed the legal issues were:

1. whether officers had valid consent to enter the apartment; 2. whether the search of the bedroom was valid; and 3. whether Daino's statements to the officers were admissible.

The district court ruled only on the first of these, mooting the other two. Daino argued that the officers' entry into his apartment was unlawful because he did not unequivocally, specifically, freely, and intelligently provide consent for them to enter. Daino contended his actions showed mere acquiescence to the officer's request to enter the apartment. On the other hand, the State responded that Daino gave valid nonverbal consent and distinguished nonverbal consent from implied consent. After the evidentiary hearing, the district court granted Daino's motion to suppress, addressing only the first legal issue Daino had raised. The district court found that even though a reasonable officer would have found Daino's actions to be free, specific, and unequivocal consent for the officers to enter the apartment, Kansas law does not allow implied consent. Although the district court did not agree with that law, it applied that law anyway:

"Then I have to examine what I believe to be clear law stated by our Kansas appellate courts, which is consent may not be implied, the way I read it, under any circumstances, regardless of how clear I might think that the gestures might be.

658 COURT OF APPEALS OF KANSAS VOL. 57

State v. Daino

"And in this case, if I haven't made it clear before, this is different than the defendant just opening the door, opening the door and simply allowing the officers to come in, opening the door and not affirmatively telling them that he doesn't want them to come in—and sometimes I can't help being a little bit of a smart aleck—but I think the universal gesture with his hands of, Come on in. "And so, were it up to me, I would find that consent was freely and specifically and intelligently given. "But again, State versus Poulton, I think, is clear that . . . consent may never be implied. And one of the things that I think finally allowed me to land on a decision, one I don't agree with but one I think I have to make, is the fact that the Court of Appeals cited with approval the Blacks Law Dictionary of implied consent as, manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given. "Maybe I am just simpleminded but, again, even though I don't agree with it, I read the Kansas case law as saying that no action or gesture can be construed as implied consent. ". . . In our state courts, consent by [im]plication, at least when it involves homes and DUI blood testing, is not voluntary consent. Kansas state courts want something more. "Again, if I haven't said it already enough times, I don't agree. I believe if it were up to me that the Defendant did consent knowingly, voluntarily. But I believe that under the current status of Kansas law, it was not consent and, as a result, I must grant the motion to suppress."

The State took an interlocutory appeal. It argues:

 the district court's factual finding that Daino's acts would be construed by a reasonable person as consent to enter is supported by the evidence;  the district court's legal conclusions that express consent must be verbal and that implied consent is invalid are erroneous;  Daino expressly provided consent by his acts for officers to enter his residence;  Daino's consent, even if implied, was valid; and  Daino's consent was valid under both Section 15 of the Kansas Constitution Bill of Rights and under the Fourth Amendment to the United States Constitution.

The State does not contend on appeal that the officers' smell of marijuana wafting from Daino's apartment provided probable cause and exigent circumstances to search. See State v. Hubbard, 309 Kan. 22, 430 P.3d 956 (2018) (finding officers had probable

VOL. 57 COURT OF APPEALS OF KANSAS 659

State v. Daino cause to believe contraband or evidence of a crime was in apartment based on smell of raw marijuana odor coming from apartment). The sole issue is consent.

I. DAINO'S ARGUMENTS ARE BARRED BY HIS FAILURE TO first CROSS-APPEAL

We address Daino's argument that the district court erred in finding McKeirnan's testimony credible because McKeirnan's testimony contradicted itself. Daino argues that McKeirnan testified that Daino verbally consented to the officers' entry to the apartment and then said that Daino did not verbally consent to their entry. Similarly, Daino contends that McKeirnan testified that Daino verbally consented to the officers' search of his bedroom and then admitted he heard no verbal consent on the audio tape to his request to search Daino's bedroom. But Daino did not file a cross-appeal raising this or any other issue. The failure to cross-appeal from an adverse decision by the district court generally bars the prevailing party from challenging the lower court's ruling on that issue. See Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016); K.S.A. 2018 Supp. 60-2103(h). That rule applies here. So Daino cannot challenge the sufficiency of the evidence or the district court's credibility finding. At any rate, this court cannot reweigh credibility. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018) (finding appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations). We thus consider only the issues appealed by the State. The sole issue appealed by the State, briefed by the parties, and decided by the trial court is whether the district court erred in holding that Daino's consent for the officers to enter his apartment and investigate was invalid because it was implied. So we do not consider other arguments, such as whether Daino's consent was involuntary because officers exceeded the scope of his consent, or for any other reason. Such arguments have not been raised by either party on appeal, have not been briefed, and are not properly before us to decide. See State v. Meredith, 306 Kan. 906, 909, 399 P.3d 859 (2017) (an issue not briefed is waived or abandoned).

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State v. Daino

II. THE DISTRICT COURT ERRED BY GRANTING DAINO'S MOTION TO SUPPRESS

A. The district court's factual findings are supported by substantial competent evidence.

When we review a district court's decision on a motion to suppress, we first review its factual findings to determine whether they are supported by substantial competent evidence. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). The district court's factual findings facts are not disputed on appeal. The officers were the only witnesses at the suppression hearing. Their testimony establishes that they were in uniform, knocked on Daino's door, spoke with Daino when he opened the door a little, and then asked to enter. In response, Daino opened the door widely, stepped back, and made a sweeping gesture with his hand. No evidence to the contrary was offered. Both officers testified that they understood Daino's acts to mean that Daino was consenting to their entrance into the apartment. As stated earlier, the district court found the officers' testimony credible and we do not revisit that finding. The district court's factual findings are supported by substantial competent evidence.

B. The district court's legal conclusion is erroneous.

When, as here, the facts supporting the district court's decision on a motion to suppress are not disputed, the ultimate question of whether to suppress is a question of law over which the appellate court exercises unlimited review. Hanke, 307 Kan. at 827. The sole question here is a narrow question of law: Did the district court properly determine, as a matter of law, that consent could not be implied?

Kansas construes state constitutional provisions in a manner consistent with the Fourth Amendment.

"Kansas counts among the majority of states which have construed state constitutional provisions in a manner consistent with the United States Supreme Court's interpretation of the Fourth Amendment." State v. Thompson, 284 Kan. 763, 779, 166 P.3d 1015 (2007). Section 15 of the Kansas Constitution Bill of Rights provides

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State v. Daino the same protection from unlawful government searches and seizures as the Fourth Amendment to the United States Constitution. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010). The Kansas Su- preme Court recently confirmed this approach:

"The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Section 15 of the Kansas Constitution Bill of Rights provides the same protections. State v. Ryce, 303 Kan. 899, 909, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017); see State v. Zwickl, 306 Kan. 286, 291, 393 P.3d 621 (2017) (stating this court could extend Section 15's protections beyond the federal guarantees provided by the Fourth Amend- ment but has not yet done so)." State v. Boggess, 308 Kan. 821, 825-26, 425 P.3d 324 (2018).

Daino shows no reason this court should depart from its long history of coextensive analysis of rights under the two constitutions. The Fourth Amendment and Section 15 of the Kansas Consti- tution Bill of Rights protect the public against unlawful government searches and seizures. A government search without a warrant is per se unreasonable unless it falls within one of the exceptions to the warrant requirement. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). One such exception is consent. A court determines the existence of consent to a search as a question of fact determined from the totality of the circumstances. State v. Ryce, 303 Kan. 899, 932, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017).

The test for valid consent is objective.

The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search was valid. State v. Ruden, 245 Kan. 95, Syl. ¶ 6, 774 P.2d 972 (1989). To establish valid consent, the State must prove: (1) clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) the absence of duress or coercion, express or implied. State v. Cleverly, 305 Kan. 598, 613, 385 P.3d 512 (2016). Daino does not allege any duress or coercion, so that issue is not before us. The sole issue briefed by the parties raises a broader question—whether Daino consented to allow the officers to enter his

662 COURT OF APPEALS OF KANSAS VOL. 57

State v. Daino apartment at all. Daino argues only that Kansas law requires express, verbal consent and that implied consent cannot be valid. In contrast, the State argues that Daino's actions, although nonverbal, expressly or impliedly communicated his valid consent for the officers to enter his apartment. Our task is not to determine what Daino may have subjectively intended. Rather, our task is to determine, from Daino's acts, what a reasonable officer would have objectively understood. "The standard for measuring the scope of a [person's] consent under the Fourth Amendment is that of 'objective' reasonableness— what would the typical reasonable person have understood by the exchange between the officer and [the person]?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). We note, however, that Daino's acts after the officers entered his residence confirm, instead of refute, his intent to consent to their entry. Daino never protested the officers' presence. Instead, he later opened a safe for the officers, agreed officers could search his bedroom, showed officers where the drugs were hidden, then signed a voluntary consent to search form that the officer had reviewed with him. That form states:

 Daino was informed of his constitutional right not to have a search made of the property without a search warrant;  Daino was informed of his right to refuse to consent to such a search;  Daino authorized McKeirnan to conduct a complete search of his apartment and all rooms, cabinets, and boxes, "excepting Charles Ibarra's room";  Daino understood that anything of evidentiary value seized in the search can be used as evidence in court;  The officers are authorized to take from the searched property any items which may be used as evidence in court; and  "This written consent to search is being granted by me to the above-named officer . . . voluntarily and without threats or promises of any kind."

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State v. Daino

Daino fully cooperated with the officers throughout the encounter, never protesting their entry or their search. His acts confirm that he intended to agree that officers could enter his apartment to investigate the smell of marijuana. They in no way suggest that Daino thought officers had entered his apartment without his consent.

Our cases establish that mere acquiescence is inadequate to show consent.

We begin with the premise that mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent. State v. Jones, 279 Kan. 71, 78, 106 P.3d 1 (2005) (finding defendant's mere acquiescence to a preliminary breath test did not establish voluntary consent.); see State v. Parker, 282 Kan. 584, 595-96, 147 P.3d 115 (2006) (finding defendant's consent was a submission to authority rather than a voluntary and knowing waiver of his rights when he was illegally detained, surrounded by police officers, witnessed the search and arrest of his friend, and was notified about a possible warrant issued under the false identity he gave police). That law is well established. Yet we find no Kansas Supreme Court cases holding that consent must be verbal to be valid. That is the question here. Our court has applied the "mere acquiescence" rule several times, most notably in State v. Poulton, 37 Kan. App. 2d 299, 307- 08, 152 P.3d 678 (2007). The district court relied on that case. There, officers arrived at Poulton's home stating they were looking for a person who had violated parole. When the officers said they wanted to go inside to find her, Poulton offered to go inside and get her. When Poulton went inside, the officers followed him into the house through the open door. The district court found that the officers had implied consent to enter the residence because the officers were never told not to enter the house. The Court of Appeals panel reversed, finding: "The fact that Poulton acquiesced or impliedly consented in the officers' entry does not meet the standard for voluntary consent." 37 Kan. App. 2d at 307. It cited Black's Law Dictionary, which defined implied consent as:

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State v. Daino

"'[t]hat manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given. An inference arising from a course or conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signify- ing assent.'" 37 Kan. App. 2d at 307.

The court stated that "[c]onsent by implication . . . is contrary to established law" and held that the facts showed no more than "'acquiescence to a claim of lawful authority.'" 37 Kan. App. 2d at 307-08 (quoting in part Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 [1968]). As a result, the State failed to prove by a preponderance of the evidence that Poul- ton unequivocally, specifically, freely, and intelligently consented to the officers' entry into his home and did not merely submit to lawful authority. We followed Poulton in State v. Tang, No. 109,875, 2013 WL 6168664 (Kan. App. 2013). There, under facts quite similar to Poul- ton's, we found no error in the district court's suppression:

"[T]he ultimate purpose of [officer] Eichinger's entry is not the critical consideration; the issue is whether Tang validly consented to Eichinger's entry into the home. We agree with the district court that Tang's opening the door, walking into his home, and failing to prevent Eichinger from following him does not show that Tang unequivocally, specifically, freely, and intelligently consented to Eichinger's entry into his home." 2013 WL 6168664, at *5.

Later, in a car stop case, we again applied the rule that "mere acquiescence or submission to a show of lawful authority is inadequate to demonstrate voluntary consent." State v. Cox, 51 Kan. App. 2d 596, 601, 352 P.3d 580 (2015). There, Cox moved to suppress all evidence stemming from Officer Peil's search of her bag in Simmons' car. After the officer stopped Simmons and found multiple bags in her car, he called Cox at the community corrections office to confirm that she had left her bags in that car. Cox confirmed it and told the officer that she had left a paper shopping bag from a particular store in the back of Simmons' car and that the bag contained a wood sander. When Peil went to get that bag, he found multiple shopping bags from that same store in the back of the vehicle. He asked Simmons to identify Cox's bag and then

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State v. Daino removed the bag from the car and opened it to confirm that it contained the wood sander. When the officer opened the bag, he discovered a methamphetamine pipe. We affirmed suppression, finding no implicit consent to search:

"Although the facts in Poulton differ from Cox's case, the general principles of law governing consent to search are applicable herein. The State's argument that Cox implicitly consented to the search based on the circumstances fails for at least two reasons. First, Simmons specifically identified the Buckle bag that belonged to Cox. Thus, there was no need for Peil to open the bag to look for the wood sander in order to verify ownership of the bag. Second, Peil had the opportunity to ask Cox for her consent to search the bag when he spoke with her on the telephone, but he failed to do so. Under these circumstances, any consent implied by the situation is simply insufficient to substitute for the required express consent. See Poulton, 37 Kan. App. 2d at 307." 51 Kan. App. 2d at 602.

The record failed to show that Cox's consent to the search of her bag was unequivocal, specific, and freely given, so the district court properly suppressed the evidence from the bag. But the panel did not find that implied consent could never be sufficient—it found it insufficient under the circumstances to substitute for the required express consent. A year later, the Kansas Supreme Court indicated that consent may be valid even if it is nonverbal and implied. Cleverly, 305 Kan. at 613. There, the Kansas Supreme Court found implied consent to search during a traffic stop based on the defendant's act of handing his cigarette packages to the officer in response to the officer's request to search them. One cigarette package contained methamphetamine. The district court denied Cleverly's motion to suppress, ultimately determining that the search of the cigarette packages was based on valid consent. On appeal, the Kansas Supreme Court agreed that Cleverly had impliedly consented to the search:

"As discussed above, the lawless conduct of the police in this circumstance was ongoing at the time Cleverly impliedly gave his consent to search the cigarette package by handing it to Officer Humig." 305 Kan. at 613.

True, the Court suppressed the evidence, but for another reason—it found that Cleverly's consent had been tainted by a prior unconstitutional seizure that rendered the consent to search involuntary. It found that the presence of multiple officers, together

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State v. Daino with other post-traffic stop conduct by one officer would "invoke duress and coercion in a rational citizen." 305 Kan. at 613. It concluded:

"In short, under the totality of the circumstances of this case, the nature of Cleverly's unlawful seizure rendered his consent to the search of the cigarette package involuntary and, consequently, invalid. The district court erred in refusing to suppress the evidence seized from the cigarette package." 305 Kan. at 614.

Cleverly thus found that defendant's act of handing his cigarettes to the officer, in response to the officer's request to search them, was valid implied consent. But that consent was given under duress, so was involuntary. Daino alleges no duress or coercion. Recently, in a hotel room search case, another panel of our court applied the rule that "'mere acquiescence or submission to a show of lawful authority is inadequate to demonstrate voluntary consent.'" State v. Metcalf, No. 117,802, 2018 WL 5851524, at *8 (Kan. App. 2018) (unpublished opinion). There, officers knocked on the door of Metcalf's hotel room and announced, "'Tribal police, open the door.'" 2018 WL 5851524, at *1. When Rice opened the door, one officer propped the door open with his arm, then leaned into the room and asked if Rice could go get the defendant. Rice, who had been standing in the suite's foyer, then walked toward the suite's living area calling the defendant's name. The officers then entered the suite, uninvited, and followed Rice through the foyer into the living area. The panel properly found suppression was warranted due to lack of consent. In Metcalf, no officer ever asked for consent to enter. And in Metcalf, the occupant did not, by his or her actions, yield the right of way to the officers' entry. Although the district court in Metcalf relied on the fact that Rice had stepped away from the door in a way that suggested the officers could enter, the panel found that fact unsupported by the record. Metcalf carefully distinguished its facts from those in other cases in which officers explicitly ask for consent to enter and the occupant responds by actions clearly yielding the right of way.

"The State cites an 11th Circuit court decision holding that 'yielding the right-of-way' constituted consent for officers to enter the defendant's home. United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002). Ramirez- Chilel differs from the case at hand because there the officers explicitly asked

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State v. Daino the defendant for consent to enter. They also read and explained an implied consent form once they were in the home. In its decision, the 11th Circuit court dif- ferentiated Ramirez-Chilel from United States v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996), wherein the same court held that '"it is inappropriate to 'sanction[ ] entry into the home based upon inferred consent.'"' 289 F.3d at 752. "In Gonzalez, the court held that when police followed the defendant's mother into the home when she went to get a drink of water, the mother's actions were not adequate implied consent to the police's warrantless entry to the house. See Ramirez-Chilel, 289 F.3d at 752. In Ramirez-Chilel, the 11th Circuit court explicitly compared the two cases and wrote: 'We can certainly make a distinction between the failure to object when officers follow someone into their home and the act of "yielding the right-of-way" to the officers at the person's front door.' 289 F.3d at 752. "Here, Officers Shobney and Wamego's actions better match those of the police in Gonzalez. The bodycam footage shows that the officers followed Rice into the suite after she followed their directive to go search for Metcalf. Further- more, as discussed earlier, the trial court lacked substantial evidence for its finding that Rice 'stepped away from the door in such a way as to suggest the officers could enter.' The bodycam footage does not show Rice stepping away from the door at all until Officer Shobney told her to go find Metcalf. The account Officer Shobney provided, alleging he watched Rice step away from the door to look for Metcalf, is a factual impossibility and contradicts the bodycam footage. "The record shows that the officers did not ask Rice to allow them into the room; rather, Officer Shobney asked Rice to go look for Metcalf and the officers followed her. This is more analogous to the facts in Gonzalez, where the police followed a defendant's mother into the house when she went inside to get water, than it is to the facts in Ramirez-Chilel, where police explicitly asked the defendant for permission to enter, and he responded by yielding the right-of-way into the home." Metcalf, 2018 WL 5851524, at *8.

Our court has held that a nod of the head in response to an officer's request might be unequivocal and specific consent. State v. Seeley, No. 99,456, 2009 WL 500960, at *4-5 (Kan. App. 2009) (unpublished opinion). There, an officer asked Seeley if the officers could search their apartment for any type of illegal narcotics and testified that Seeley then nodded her head in approval. The Seeley court upheld the search noting, "[a]rguably, a nod of the head can be unequivocal and specific," citing United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999), and United States v. Torres, 983 F. Supp. 1346, 1354-55 (D. Kan. 1997). 2009 WL 500960, at *4. But in Seeley, defendant had also told the officers they could "look around." 2009 WL 500960, at *3-4. Another panel of this court recently relied on Seeley in finding that a wave paired with opening the door wider and stepping back

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State v. Daino can be unequivocal and specific consent. City of Topeka v. Mur- dock, No. 116,213, 2018 WL 385699 (Kan. App.), rev. denied 308 Kan. 1593 (2018) (unpublished opinion). There, the officer told Murdock he wanted to speak with him about personal business and asked if he could step inside to talk. Murdock allowed him to come inside his apartment. The defendant told officers to "come in," then he stepped back into the apartment, pushed the door open wider, and gave a slight wave. The panel found that "[i]f a nod of the head can be unequivocal and specific, so can a wave paired with opening the door wider and stepping backwards." 2018 WL 385699, at *3. The panel agreed with Seeley's finding that "[n]on- verbal conduct can also constitute consent to enter an individual's home." 2018 WL 385699, at *3. The Murdock court upheld the entry into the defendant's apartment.

The undisputed facts show Daino's unequivocal, specific, free, and intelligent consent.

We believe our prior appellate cases were correctly decided. But the facts here are distinctively different. Officers explicitly asked Daino for permission to enter, and he responded by yielding the right-of-way into his home. Poulton and other cases summarized above are distinguishable from Daino's case in this important respect. They involved an inaction on the defendant's part because the defendant was never asked for consent to enter, the defendant in no way indicated that the officers could enter—instead, the defendant merely failed to object when officers, uninvited, followed the defendant into his residence. In contrast, Daino affirmatively communicated to the officers his agreement for them to enter his apartment by his acts in direct response to the officer's request to enter. When the officer asked to enter, Daino opened the door widely, stepped back, and made a sweeping gesture with his hand. As the district court found, any reasonable person would have understood from that exchange that Daino agreed the officers could enter. There was no ambiguity about the meaning of his acts. The uncontested facts show that Daino yielded the right of way to the officers by his nonverbal, affirmative communication.

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State v. Daino

Daino did much more than just acquiesce or submit to a show of lawful authority. The totality of circumstances shows that Daino unequivocally, specifically, freely, and intelligently consented to officers entering his residence to investigate the smell of marijuana. Although silence alone is not consent, Poulton, 37 Kan. App. 2d at 307, silence coupled with clear, responsive, and unequivocal actions can be. And nothing in our precedent requires consent to be verbal—it merely requires that consent be clear and unequivocal.

Federal cases uphold implied consent to enter a residence.

Although Kansas courts have not squarely held that "[c]onsent can be found from an individual's words, acts or conduct," Krause v. Penny, 837 F.2d 595, 597 (2d Cir. 1988), our federal counterparts have.

"For consent to be voluntary, the government must receive either express or implied consent. See United States v. Jones, 701 F.3d 1300, 1320-21 (10th Cir. 2012). "Implied consent to enter a home is no less valid than explicit consent. See id. Consent 'must be clear but it need not be verbal. Consent may instead be granted through gestures or other indications of acquiescence, so long as they are sufficiently comprehensible to a reasonable officer.' United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007). 'The focus is not whether [one] subjectively consented, but rather, whether a reasonable officer would believe consent was given' as 'inferred from words, gestures, or other conduct.' United States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009)." United States v. Lopez-Carillo, 536 Fed. Appx. 762, 767-68 (10th Cir. 2013).

The rule that "consent must be clear, but it need not be verbal," United States v. Guerrero, 472 F.3d 784, 789 (2007), makes good sense, as actions may be just as clear and responsive as words. Daino suggests that the federal circuits do not uphold implied consents for police officers' entries of residences. Although we have not conducted an exhaustive study of that topic, our research shows that federal cases consistently uphold actual consent, whether express or implied, for officers to enter a residence. See, e.g., United States v. Faler, 832 F.3d 849 (8th Cir. 2016) (finding implied consent to enter when officer asked to come in and apartment tenant opened the door wider and moved out of the way); United States v. Sabo, 724 F.3d 891, 894 (7th Cir. 2013) (finding implied consent when arrestee opened door, stepped back and to

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State v. Daino the side, allowing police into his trailer); United States v. Jones, 701 F.3d 1300, 1321 (10th Cir. 2012) (finding implied consent for officers to enter home because defendant's affirmative acts such as unlocking his backdoor, entering, and gesturing toward the officers, were "not actions that a reasonable officer would have interpreted as signaling Mr. Jones's refusal of the officers' entry into his residence"); United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (finding implied consent to enter residence because defendant stepped aside to let police officers inside after they knocked on his hotel room door and asked for permission to enter); United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (finding implied consent to enter trailer because defendant yielded right of way to officers); United States v. Genao, 281 F.3d 305, 309-10 (1st Cir. 2002) (finding implied consent to search apartment when defendant volunteered that he had a key to the apartment and showed the police how the key worked); United States v. Rosi, 27 F.3d 409, 412 (9th Cir. 1994) (finding implied consent to enter condominium because defendant provided agents with key so they could enter and defendant could change clothes). Those cases show that voluntariness is a question of fact to be determined from all the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The Fourth Amendment to the Constitution of the United States protects only against unreasonable searches and seizures. State v. Kimberlin, 26 Kan. App. 2d 28, 35, 977 P.2d 276 (1999) (finding resident's consent given to one officer to enter house to protect her from violence provided backup officer with implied consent to enter house for safety of first officer). The typical reasonable person would have understood by the exchange between the officers and Daino that Daino was consenting to officers entering his apartment. See Jimeno, 500 U.S. at 251. The State met its burden to prove by a preponderance of the evidence that Daino's consent was unequivocal, specific, and freely and intelligently given. Daino validly consented to the officers' entry into his apartment. He did not merely acquiesce or submit to a show of lawful authority. We reverse the district court's order of suppression and remand the case for further proceedings.

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State v. Daino

* * *

BUSER, J., dissenting: I dissent. Under the totality of circumstances—especially Officer Robert McKeirnan's dissembling statements made to Gianni Daino outside the doorway of his apartment and Daino's silent gesture and demeanor in response to those statements—I would find the State failed to provide clear and positive testimony that consent to enter the apartment to conduct a search and seizure was unequivocal, specific, and freely and intelligently provided. See State v. Poulton, 37 Kan. App. 2d 299, 307, 152 P.3d 678 (2007), aff'd in part and rev'd in part on other grounds 286 Kan. 1, 179 P.3d 1145 (2008) (affirming the decision of the Court of Appeals to reverse the convictions based on the initial search). Officer McKeirnan made the following statements to Daino upon the defendant opening the door, "How's it going? Oh wow, yeah, it is here. Okay. You've got a bunch of weed in here, man." The officer then informed Daino, "Well, here's the deal, not a huge deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me step in with you real quick and we will get it figured out, okay?" In response, Daino opened the door, silently gestured, and the officers entered the apartment. There are three principal reasons I believe that any implied consent by Daino was not unequivocal, specific, and freely and intelligently provided. First, it is readily apparent that Officer McKeirnan did not explicitly or implicitly inform Daino that his request to "step in with you real quick" was to search the premises and seize marijuana or evidence. Without the officer advising Daino of his intended purpose for entering the apartment, any resulting consent—whether explicit or implied—was not knowing and informed. Second, although it is a preferred practice but not a mandatory requirement, the officer did not inform Daino of his right to refuse the officers' entry into the residence. See Poulton, 37 Kan. App. 2d 299, Syl. ¶ 4 ("A court decides the question of voluntariness based on the totality of circumstances, considering whether the individual was threatened or coerced and whether the individual was informed of his or her rights."). (Emphasis added.) While Officer McKeirnan possessed a consent to search form that summarized

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State v. Daino

Fourth Amendment search and seizure rights, this important information was not provided to Daino at the doorway. Instead, the consent form was given to Daino for his review and signature several minutes after entry into his apartment and after two searches of his bedroom already had resulted in the discovery of illegal drugs and contraband. The after-the-fact written consent to search the apartment and seize evidence obviously did not retroactively validate the initial uninformed implied consent to enter the apartment. In summary, I would find Officer McKeirnan's doorway statements were insufficient to provide any basis for Daino to make a knowing and intelligent consent. Third, as noted by my colleagues: "'The standard for measuring the scope of a [person's] consent under the Fourth Amendment is that of "objective" reasonableness—what would the typical reasonable person have understood by the exchange between the officer and [the person]?' Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991)." 57 Kan. App. 2d at 662. The question is, therefore, presented: What would a reasonable person understand by the doorway exchange between Officer McKeirnan and Daino? I submit that not only did Officer McKeirnan's statements at the doorway insufficiently inform Daino of the officer's purpose in seeking entry into the apartment or inform Daino of his constitutional right to refuse entry, Officer McKeirnan's statements were also misleading and would not have conveyed to a reasonable person that the officer was seeking consent to enter the apartment to search for illegal drugs and contraband. Based on Officer McKeirnan's vague statements to Daino about "step[ping] in with you real quick," writing a ticket for marijuana possession because it was "not a huge deal," and getting it "figured out," a reasonable person would not have understood that the officer was seeking entry in order to search the apartment. On the contrary, a reasonable person would understand that the officer's purpose was to enter the apartment to facilitate writing the citation. In this context, I would conclude that Daino was silently acquiescing to Officer McKeirnan's claim of lawful authority to enter the apartment because the officer knew there was marijuana inside, and he was required to issue a citation for this violation of law.

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State v. Daino

My colleagues acknowledge that acquiescence is not informed consent. 57 Kan. App. 2d at 663; see Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (State does not meet its burden to prove voluntary consent to search "by showing no more than acquiescence to a claim of lawful authority."); 37 Kan. App. 2d 299, Syl. ¶ 5 ("A defendant's acquiescence or implied consent to an officer's entry into his or her home does not meet the standard for voluntary consent to enter the home."). They dispute, however, that Daino simply acquiesced to Officer McKeirnan's claim of lawful authority in part based on the officer's testimony that the officer "'absolutely' believed Daino was consenting to let him enter his apartment." 57 Kan. App. 2d at 655. While true, Officer McKeirnan also candidly testified that he "assumed that [Daino] was agreeing with me" to allow entry into the apartment. (Emphasis added.) I would contend a reasonable person would understand that Daino's silence and gesture in response to Officer McKeirnan's dissembling statements made at the doorway were not his expres- sion of fully informed and freely-given consent to enter the apartment to search and seize incriminating evidence. On the contrary, a reasonable person would understand Daino's nonverbal gesticu- lation as his act of resignation or acquiescence to being caught smoking marijuana, having an officer inform him that his conduct was illegal, and cooperating with the officer's request to enter the apartment in order to process the citation. In this regard, Officer McKeirnan provided important testimony that Daino was merely acquiescing to his request at the doorway to "let me step in with you real quick." Daino was only 18 years of age. Officer McKeirnan testified at the preliminary hearing that when he opened the door, Daino "kind of hung his head and had me come in." The officer described Daino as emotionally upset and crying upon the officers' entry into the apartment. According to Officer McKeirnan testifying at the suppression hearing, "It seemed like he was upset that he messed up. He seemed like he was upset at himself." At both the preliminary hearing and hearing on the motion to suppress, Officer McKeirnan characterized Daino's demeanor as "compliant" or "very compliant." Daino's emotional response upon talking with Officer McKeirnan at the doorway, coupled with his quiet, compliant behavior, persuade

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State v. Daino me that his gesture at the doorway was merely acquiescence to the officer's authority upon being advised that Daino had committed an illegal act and was about to receive a citation inside his apartment. In conclusion, under the totality of these circumstances, I would find that Daino did not unequivocally, specifically, and freely and intelligently consent to Officer McKeirnan's entry into his apartment. Accordingly, I would affirm the district court's order suppressing the evidence due to the violation of the Fourth Amendment.

VOL. 57 COURT OF APPEALS OF KANSAS 675

Long v. Houser

___

No. 120,866

JAMES LONG, Appellant, v. MICHAEL HOUSER and STATE OF KANSAS, Appellees.

___

SYLLABUS BY THE COURT

1. EMPLOYER AND EMPLOYEE—Going and Coming Rule—Risks of Driving Not Related to Employment. The going and coming rule instructs that when an employee is driving to or from work, he or she is subjected only to the same risks or hazards that the public faces while driving. The risks therefore are not causally related to the employment.

2. SAME—Going and Coming Rule—Application to Third-Party Tort Liabil- ity Claims. The going and coming rule is applicable to third-party tort liability claims as part of the calculus of whether an employee is acting within the scope of his or her employment.

3. SAME—State Legislators Not Within Scope of Their Employment When Driving Home. State legislators are generally not acting within the scope of their employment when they drive home from Topeka at the end of the legislative session, even though the state reimburses them for their travel.

Appeal from Cherokee District Court; FRED W. JOHNSON JR., judge. Opin- ion filed January 10, 2020. Affirmed.

David C. Byerley, of Law Offices of McKay & Byerley, of Kansas City, Missouri, and Shelly C. Dreyer, of Sticklen & Dreyer, P.C., of Joplin, Missouri, for appellant.

Brant M. Laue, deputy solicitor general, Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellee State of Kansas.

Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.

ARNOLD-BURGER, C.J.: A governmental entity is "liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." K.S.A. 2018 Supp. 75-6103(a). One of the most important factors used to determine whether an employer is liable for the negligence of his or her employee while the employee is traveling is "whether the employee, while traveling to or from the workplace, was under

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Long v. Houser the control of the employer." Mulroy v. Olberding, 29 Kan. App. 2d 757, 767, 30 P.3d 1050 (2001). State Representative Michael Houser was returning home the day after the legislative session closed for a break. On his drive home he struck James Long's vehicle and injured Long. The state reimbursed Houser for his travel on the day of the accident. Long sued Houser and the State. Long argued the State was vicariously liable for Houser's negligence because Houser was within the scope of his employment at the time of the collision. The district court ruled against Long, finding that Houser was not within the scope of his employment. Long appeals.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2017, Houser was a state representative for the State of Kansas. Houser lived in Columbus, Kansas. As a state representative, Houser was required to be present in Topeka during legislative sessions. Kansas provides its state representatives a salary and a per diem. The per diem can be used for lodging and meals. The State also provides representatives funds to pay for their travel to and from Topeka. Representatives often spend the night in Topeka after a day's session—due to weather or time of day—and return to their homes the next day. Similarly, representatives often spend the night in Topeka before the session starts. The nights before a session and after a session are covered by the per diem allowance provided legislators. On February 23, 2017, the Legislature recessed, and Houser chose to spend the night in Topeka and return to Columbus the following morning. On the morning of the 24th, after eating break- fast, Houser returned home in his personal vehicle. He took his usual route and only stopped to use the restroom and get refresh- ments. According to Houser, he would have done the same thing if he had returned on the night of the 23rd. On his way home, Houser crossed the center line and struck Long's vehicle. Long was injured in the collision. Houser was later reimbursed for his travel on February 24, 2017—the day of the crash.

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Long v. Houser

Long sued Houser and the State. The State filed a motion for summary judgment, arguing that the State could not be liable for Houser's accident because Houser was not acting within the scope of his employment while he was traveling from Topeka to his home in Columbus. The district court granted the State's motion for summary judgment, finding that Houser was not within the scope of his employment during his drive home. Long appeals.

ANALYSIS

Generally, a state sovereign cannot be sued without its consent. Commerce Bank of St. Joseph v. State, 251 Kan. 207, 213- 14, 833 P.2d 996 (1992) (state immune unless it has consented to be sued or waived its immunity). Kansas has done so by statute, with a few statutorily enumerated exceptions. Under K.S.A. 2018 Supp. 75-6103(a), the State "shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." The district court found Houser was not acting within the scope of his employment. Long disagrees. So he has sought appellate review of the district court's finding. When, as here, there is no factual dispute, we review the order granting summary judgment de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). The question on appeal is whether Houser was acting within the scope of his employment when he drove to his home in Co- lumbus the day after the legislative session ended.

Vicarious liability

Long is seeking damages from the State under the theory of vicarious liability. "Vicarious liability is a term generally applied to legal liability which arises solely because of a relationship and not because of any actual act of negligence by the person held vicariously liable for the act of another." Leiker v. Gafford, 245 Kan. 325, 355, 778 P.2d 823 (1989). Vicarious liability is also called imputed negligence or respondeat superior. Nash v. Blatchford, 56

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Long v. Houser

Kan. App. 2d 592, 608, 435 P.3d 562, rev. denied 310 Kan. ___ (September 9, 2019). Our Supreme Court has noted that the justification for vicarious liability is that the losses caused by an employee's tortious or bad acts are placed on the enterprise or the employer engaged in that enterprise as a cost of doing business. Bright v. Cargill, Inc., 251 Kan. 387, 407, 837 P.2d 348 (1992). If the employer is engaged in an enterprise, that may ultimately harm others, it is the employer who is best able to bear the financial burden of liability and pass on the costs of it. Bair v. Peck, 248 Kan. 824, 830, 811 P.2d 1176 (1991). In other words, it is a deliberate allocation of risk.

"It is elemental that every person conduct his [or her] business so as not to cause injury to others, and if he [or she] conducts business through others, he [or she] is bound to manage them so third persons are not injured by the others while they are doing the principal's business within the scope of their authority. The doctrine is a 'fiction of the law,' not favored in this state, which is limited to master/servant (employer/employee) and joint enterprise relationships. These are relationships in which the potential respondents have sufficient control and responsibility for the actions of others to justify holding them liable for their actions. [Citations omitted.]" Brillhart v. Scheier, 243 Kan. 591, 593, 758 P.2d 219 (1988).

As a result, to apply this fiction of the law, we must make sure that the employer is exercising sufficient control over the employee to justify holding the employer liable. In other words, was the employee acting within the scope of his or her employment? See K.S.A. 2018 Supp. 75-6103(a).

Determining whether an employee is acting within the scope of his or her employment

Generally, whether an employee is acting within the scope of his or her employment is a question of fact. But if the facts of the case lead only to one reasonable conclusion, the court can decide the issue as a matter of law. Wayman v. Accor North America, Inc., 45 Kan. App. 2d 526, Syl. ¶ 3, 251 P.3d 640 (2011). Such is the case here. Our Supreme Court has explained that to determine whether a state employee is acting within the scope of his or her employment courts consider "(1) whether the act by the employee was done for the employee's personal benefit or in furtherance of the

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Long v. Houser state's business; (2) whether there was express or implied authority to perform the act in question; and (3) whether the employee's act was reasonably foreseeable by the State." Commerce Bank of St. Joseph, 251 Kan. at 215. "The liability of the State . . . depends . . . upon whether the employee, when the employee did the wrong, was acting in the prosecution of the State's business and within the scope of the employee's authority, or had stepped aside from that business and done an individual wrong." 251 Kan. at 215. The statute also limits the State's liability to "circumstances where the governmental entity, if a private person, would be liable under the laws of this state." K.S.A. 2018 Supp. 75-6103(a). This makes sense. To hold otherwise could subject the sovereign to liability in more circumstances than a private individual—greatly enhancing its liability. This provision ensures that the State can raise all the same defenses as a private person could, no more and no less. A common area of debate when it comes to whether someone was acting within the scope of his or her employment when a motor vehicle collision is concerned, is whether the employee is acting in furtherance of the employer's business when the collision occurs. We have only one Kansas Supreme Court case that addresses such a situation, one factually very similar to this case— albeit with a collision between a bicyclist and a pedestrian. A messenger boy for Postal Telegraph was riding his bicycle home from work when he ran into a pedestrian, causing injury. Kyle v. Postal Telegraph-Cable Co., 118 Kan. 300, 235 P. 116 (1925). Like this case, Kyle turned on whether the messenger boy was within the scope of his employment at the time of the collision. The court held that the boy was not within the scope of his employment because his "actual work for the company had ceased for the day." 118 Kan. at 302. The boy "was free to go where he desired" and "could use his own mode and route of travel." 118 Kan. at 302. As the court noted, the employer "no longer controlled his movements." 118 Kan. at 302. While the boy had company reports in his possession, the employer did not exert any control over what he did on his way home. The court reasoned that "carrying . . . the report was merely incidental to his going home." 118 Kan. at 302. Because the boy was not within the scope of his

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Long v. Houser employment after he left work, the company was not liable for the collision. 118 Kan. at 302. This finding is not inconsistent with the Supreme Court's three-part test in Commerce Bank of St. Jo- seph. The boy was not acting in furtherance of the telegraph company's business when he was riding home. Although Kyle is the only Kansas Supreme Court case that addresses vicarious liability of an employer when an employee is traveling home from work, this court addressed it in Mulroy, 29 Kan. App. 2d at 767, as it relates to an employee traveling to work. Dennis Mulroy sued Duane Olberding and Western Resources, his employer, for damages related to his injuries sustained in a collision with Olberding. Our court found that the issue was not whether the employee had reached the work location; instead it is "whether the employee, while traveling to or from the workplace, was under the control of the employer." 29 Kan. App. 2d at 767. The court found that Olberding was acting within the scope of his employment so Western Resources could be found vicariously liable. 29 Kan. App. 2d at 768-69. It reasoned that Western Resources controlled Olberding at the time of the accident. The company had sent him to a different location that day than his normal work location, and he was on company time when the collision occurred. Western Resources exercised control over Olberding by firing him for operating a vehicle while under the influence of alcohol during working hours and for his failure to report the crash to the company. 29 Kan. App. 2d at 768. Mulroy also dovetails with Commerce Bank of St. Joseph and Kyle. The focus must be on whether the employee was acting in furtherance of the employer's business. A key factor is the amount of control exercised over the employee by the employer. It is simply another way of asking whether the employee was acting within the scope of his or her employment when the bad act took place. The State asks us to apply what is known as the "going and coming" rule to the vicarious liability equation. The going and coming rule precludes an employee from recovering from a workers compensation claim when the employee is merely going to or coming from work. The rule has a statutory basis, beginning at

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Long v. Houser least as early as 1913, in the Kansas Workers Compensation Act, K.S.A. 44-501 et seq. See Sedlock v. Mining Co., 98 Kan. 680, 681, 159 P. 9 (1916). In general, the Act requires that the employer pay for any injuries suffered by an employee that arise out of and in the course of his or her employment. K.S.A. 2018 Supp. 44-501b(b). But certain injuries are excluded from coverage. The language of the statute regarding the definition of "arising out of and in the course of employment" has remained unchanged since 1913.

"The words, 'arising out of and in the course of employment' as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence." K.S.A. 2018 Supp. 44-508(f)(3)(B).

Even before the Act's codification in 1913, the presumption that someone going to or returning from work was not acting within the course of his or her employment was a judicially created rule "universally developed" by courts in workers compensation cases. Chapman v. Victory Sand & Stone Co., 197 Kan. 377, Syl. ¶ 1, 416 P.2d 754 (1966). The rationale behind the going and coming rule is that when someone is driving to work, he or she is subjected only to the same risks or hazards that the public faces while driving. The risks therefore are not causally related to the employment. Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012). But the workers compensation cases recognize that there could be situations when travel was an essential part of employment so that it furthers the purposes of the employer. In those cases, injuries would be covered by workers compensation. See Craig, 47 Kan. App. 2d at 168. When travel becomes an intrinsic part of the job it is an element of employment. Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006). As we pointed out in Craig, "the analysis is really whether travel has become a required part of the job such that the employee actually assumes the duties of employment from the moment he or she leaves the house and continues to fulfill the duties of employment until he or she arrives home at the end of the workday." 47 Kan. App. 2d at 168.

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Long v. Houser

We do not see any difference in the analysis between the going and coming rule in the workers compensation context and the analysis for vicarious liability under Commerce Bank of St. Jo- seph, Kyle, and Mulroy which focused on whether the employer exercised control over the employee during the trip to and from work. Typically, an employee would not be furthering the business of the employer when going to and coming from work. This court came to the same conclusion, even if in dicta, in Ullery v. Othick, No. 112,469, 2017 WL 3837218, at *5 (Kan. App. 2017) (unpublished opinion). In Ullery, the district court was tasked with determining whether a health aide was employed by a particular business. If she was, the business might have been vicariously liable for the health aide's negligence for causing a collision that killed her patient on the way home from a training session. Although the court found that the health aide was not an employee of the business, it opined that even if she were the result would not change.

"As a general rule, an employer is not liable under Kansas law for an employee's negligence while the employee is traveling to or from the job. That's known as the ['going and coming'] rule—and it makes sense because the employee isn't acting within the scope of employment while coming to or going away from the jobsite." 2017 WL 3837218, at *5.

The district court and our court reasoned that the business had no right to control the aide's actions in going to or coming from the training session. Our court focused on the fact that the aide was free to go wherever she wanted after the meeting and that she even stopped for fast food on the way home. 2017 WL 3837218, at *5. This was a clear application of the going and coming rule to a vicarious liability tort claim. And finally, 20 years ago, Federal District Judge G. Thomas VanBebber came to the same conclusion. In Girard v. Trade Pro- fessionals, Inc., 50 F. Supp. 2d 1050, 1053 (D. Kan. 1999), aff'd 13 Fed. Appx. 865 (10th Cir. 2001) (unpublished opinion), he noted that Kyle was still good law and although "the Kansas Su- preme Court has not expressly used the phrase 'going and coming rule' in the context of vicarious tort liability," it would do so—as have most other state supreme courts.

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For these reasons, we have no hesitation finding that even though the Kansas Supreme Court has not used the magic words "going and coming rule" in the tort context, it has applied and will continue to apply the going and coming rule to third-party tort liability claims as a means to determine whether an employee is acting within the scope of his or her employment. See Kyle, 118 Kan. at 301-02. So next, we must apply the rule to the facts here to see if Houser was acting within the scope of his employment— in furtherance of the business of the state—when he left Topeka to return home.

Houser was not acting within the scope of his employment as he returned home from Topeka.

Houser was returning home from work at the time of the crash. The going and coming rule, on its face, applies to the situation. But as this court explained in Craig, the real question is whether the travel was so integral to the employment that the travel was an assumption of the duties of employment. See 47 Kan. App. 2d at 167-68. From the facts provided here, Houser cannot be said to have been within the scope of his employment while he traveled home. The most important question is how much control the employer had over the employee while the employee was traveling. See Kyle, 118 Kan. at 302 (noting employer "no longer controlled" the employee's movements); Mulroy, 29 Kan. App. 2d at 767 ("[T]he test for whether respondeat superior applies in travel situations is whether the employee, while traveling to or from the workplace, was under the control of the employer."). Here, the State exerted minimal control over Houser during his travels. Long is correct that Houser had to live in his district and be present in Topeka to work, but those requirements do not control how Houser travels between the two locations. See Kan. Const. art. 2, § 4. Houser had the choice of leaving the same day the session ended, or he could have stayed all weekend. He had complete discretion on when he would leave Topeka. This was not a situation like the one this court confronted in Craig, where the employee had to pick up fellow workers and arrive at a specified location at a specified time. See 47 Kan. App.

684 COURT OF APPEALS OF KANSAS VOL. 57

Long v. Houser

2d at 170. We held that Craig, who was on his way to work, was within the scope of his employment at the time of his collision because he was reimbursed for his mileage to and from work, received a per diem reimbursement for going to work, was given a bonus for each crew member that arrived with him to work, and would not have been hired if he could not drive and transport his crew. 47 Kan. App. 2d at 170. Craig had no permanent worksite, and the employer was receiving a benefit from the transportation arrangement. This court held that because Craig's time traveling was an essential part of his employment, he was entitled to workers compensation coverage. 47 Kan. App. 2d at 171. Unlike Craig, the State had a more generalized requirement for Houser—he had to live in his home district and be in Topeka for work. How and when he met those requirements was up to him. The fact that Kansas reimburses Houser's mileage weighs in favor of Long's argument that Houser was within the scope of his employment when he was traveling. But the overall reimbursement scheme cuts against any exertion of control. The State has fixed-mileage rates, and it only reimbursed Houser for one trip to Topeka and one trip back to his home at the fixed rate. See K.S.A. 2018 Supp. 75-3203(a)-(b). There is no indication that the State sought to control what route Houser used to return home. In fact, there was no incentive for the State to do so because Houser would be reimbursed the same amount no matter what route he took. See K.S.A. 2018 Supp. 75-3203(b). But see K.S.A. 2018 Supp. 75- 3203(e) (allowing additional reimbursement for parking, turnpike, and bridge tolls). If the employer is not exerting some form of control over the travel, it cannot be said that the employer is benefiting from the travel more than the standard benefit an employer receives by having employees commute to work. See Craig, 47 Kan. App. 2d at 167-68. By the time Houser was returning home, his actual work for the State was complete. See Kyle, 118 Kan. at 302. The fact that state representatives must work in Topeka and live in the district that elected them does not place them in a situation unlike what many employees in all walks of life face. He was doing no more than countless other employees do every day—returning home. Representatives may travel between work and home using

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Long v. Houser their "own mode and route of travel." See 118 Kan. at 302. The fact that some representatives' commutes may be longer than the ordinary employee is immaterial to the fact that each representative is merely traveling to work or home. Finally, Long claims that a state representative's immunity from arrest while traveling to or from Topeka weighs in favor of a finding that the State controls the representative's travel. We disagree. Long is correct that a representative enjoys certain immunities while traveling to or from the legislative session. While the immunity places a traveling state representative in a different position than most employees heading to or from work, it does not change the fact that representatives may travel in the manner of their choosing without direction from the State, so long as they arrive at work on time. The district court did not err in granting the State's motion for summary judgment. The State is only liable for the negligence of an employee "where the governmental entity, if a private person, would be liable under the laws of this state." K.S.A. 2018 Supp. 75-6103(a). The State's liability depends, in part, on whether the employee was acting in the furtherance of the State's business and within the scope of his or her authority. Commerce Bank of St. Joseph, 251 Kan. at 215. But the State will only be liable if a private person in the same situation would be liable. K.S.A. 2018 Supp. 75-6103(a). Because a private employer would not be liable for the employee's negligence in this situation—going to and coming from work—neither is the State liable for Houser's negligence. See K.S.A. 2018 Supp. 75-6103(a). Based on the undisputed facts, Houser was not within the scope of his employment as he returned home from work. Sum- mary judgment therefore was proper.

Affirmed.

686 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita

___

No. 118,842

Estate of ICARUS RANDOLPH, et al., Appellants, v. CITY OF WICHITA, KANSAS, et al., Appellees.

___

SYLLABUS BY THE COURT

1. SUMMARY JUDGMENT—Application—Appellate Review. Standards for granting summary judgment and review on appeal are stated and applied.

2. TORTS—Kansas Tort Claims Act—Act Makes Municipal Liability the Rule and Immunity the Exception. The Kansas Tort Claims Act strips away sovereign immunity and makes government entities and their employees liable for their negligent and otherwise tortious conduct to the same extent as their private sector counterparts, subject to a set of specific statutory immunities. Municipal liability is the rule and immunity the exception. As a general matter, the immunities are to be narrowly construed consistent with the overarching rule of governmental liability.

3. SAME—Kansas Tort Claims Act—Governmental Party's Burden of Proof. Immunity under the Kansas Tort Claims Act constitutes a legal avoidance of or affirmative defense to liability, so the governmental party asserting an immunity bears the burden of proving its applicability at trial.

4. TORTS—Use of Force or Deadly Force—Self-defense an Avoidance for Damages—Defendant's Burden of Proof. A person threatened with physical harm has a right to respond with a display of force or the actual use of force including, in certain circumstances, deadly force. The response, however, must be reasonably calibrated to the apparent harm. Self-defense is an avoidance in a civil action for damages, so the defendant relying on it bears the burden of proof.

5. CRIMINAL LAW—Required Statutory Belief for Self-defense—Subjective and Objective Components. To act in self-defense under K.S.A. 2018 Supp. 21-5222, a person must "reasonably believe" both a physical threat exists and the degree of force he or she uses in response to be necessary under the circumstances. The required statutory belief has subjective and objective components, meaning, first, the person must honestly believe he or she is in immediate danger necessitating the use of that degree of force against an aggressor (subjective component) and, second, an objectively reasonable person would also view the circumstances that way (objective component).

6. NEGLIGENCE—Proof Required for Actionable Negligence. Actionable negligence first requires that the alleged wrongdoer owe a legally recognized duty of due care to the injured party, and the wrongdoer must then breach that duty in a way causing the injury. Lack of due care typically

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Estate of Randolph v. City of Wichita

entails doing something a reasonable person would not do under the circumstances or failing to do something a reasonable person would do. Whether a duty exists presents a question of law. Breach of a lawful duty and the causal connection between a breach and the claimed injury are questions of fact.

7. TORTS—Governmental Immunity—Discretionary Function Immunity in K.S.A. 75-6104(e). The discretionary function immunity in K.S.A. 75- 6104(e) protects the choice among otherwise reasonable options. So a government agent cannot be successfully sued for selecting one reasonable course of action over other reasonable approaches, although one of the discarded approaches arguably might have been better. The method of choosing among them or exercising that discretion is shielded, even if the method is largely unstudied, wholly arbitrary, or abused. The immunity does not protect a government agent's choice of a patently unreasonable or plainly wrongful course of conduct over other options.

8. SAME—Governmental Immunity—Exception to Discretionary Function Immunity. If a policy or procedure dictates a precisely defined course of conduct or result, then discretionary function immunity under K.S.A. 75- 6104(e) cannot apply for the very reason that the policy or procedure necessarily precludes choosing among options or the exercise of what would be protected discretion.

9. SAME—Civil Assault—Requirements for Actionable Injury. A civil assault entails the threat of bodily harm coupled with the apparent ability to carry out the threat resulting in the victim's immediate apprehension of harm. The actionable injury is the victim's apprehension and, thus, his or her mental disturbance resulting from the threat.

10. SAME—Civil Battery—Compensable Harm Results from Nature and Ex- tent of Contact. Civil battery entails an unprivileged intentional touching with the purpose of bringing about a harmful or offensive contact. The compensable harm derives from the nature and extent of the contact.

11. SAME—Kansas Tort Claims Act—Adoptive Immunity Does Not Incorpo- rate Qualified Immunity. The Kansas Tort Claims Act immunity in K.S.A. 75-6104(i) incorporates or adopts immunities originating in some other legal source that apply to the claim being litigated. Adoptive immunity does not extend qualified immunity afforded government agents for alleged violations of federal statutory or constitutional law to state law tort claims for assault or battery.

12. SAME—Intentional Torts Law Incorporates Transferred Intent or Liabil- ity. The law governing intentional torts incorporates transferred intent or liability so that a person intending to commit an assault or battery against one individual may be liable if he or she causes actionable harm to someone other than the intended victim.

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Estate of Randolph v. City of Wichita

13. SAME—Intentional Infliction of Emotional Distress or Tort of Outrage Claim—Requirements. A claim for the intentional infliction of emotional distress or the tort of outrage requires: (1) the defendant act intentionally or in reckless disregard of the plaintiff; (2) the actions must be "extreme and outrageous"; (3) the plaintiff has to experience "extreme and severe" mental distress; and (4) the plaintiff's mental distress has to be causally connected to the defendant's actions. The wrongdoer need not intend to cause the victim emotional distress. Rather, the tort requires that the intentional conduct so far exceed societal norms that it may be fairly characterized as exceptionally vile, reprehensible, or intolerable.

14. SAME—Negligent Infliction of Emotional Distress—Requires Physical Harm and Emotional Distress. Individuals may recover for the negligent infliction of emotional distress only if they have also suffered near contemporaneous physical harm distinct from common physical symptoms of the claimed emotional distress.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opin- ion filed January 21, 2020. Affirmed in part, reversed in part, and remanded with directions.

John A. Kitchens, of Wakarusa, and Lee R. Barnett, of Lee R. Barnett, P.A., of Wakarusa, for appellants.

Samuel A. Green and J. Steven Pigg, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

ATCHESON, J.: A Wichita police officer fatally shot Icarus Randolph in the front yard of his home shortly after noon on July 4, 2014, as family members gathered there to celebrate the holiday. Randolph had a history of mental illness. He seemed upset or angry that morning and had become nonresponsive to his family. Randolph's mother called 911 to secure assistance in transporting him to a mental health facility. Two officers separately responded to the call. Less than 13 minutes later, Officer Ryan Snyder shot Randolph four times. Randolph's estate and members of his family who witnessed the shooting filed a civil action for damages under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., against Snyder, the other officer at the scene, and the City of Wichita as their employer. The suit alleges various theories of liability grounded in negligence and intentional tortious conduct. The City and the officers denied any liability. The Sedgwick County District Court

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Estate of Randolph v. City of Wichita granted summary judgment to the defendants on all of the claims against them. The plaintiffs have appealed. The summary judgment record contains disputed issues of material fact bearing particularly on the intentional torts, so the district court erred in its blanket dismissal. We affirm in part, reverse in part, and remand for further proceedings.

STANDARD OF REVIEW, FACTUAL BACKGROUND, AND PROCEDURAL HISTORY

Summary Judgment Standards

Because the plaintiffs have appealed a summary judgment entered against them, we begin by outlining the standards district courts are to apply in making those rulings and we then use in reviewing them. The standards guide how we consider the competing descriptions of the relevant facts the parties say depict the final minutes of Randolph's life and how he came to die. The defendants, as the parties seeking summary judgment, had the obligation to show the district court, based on appropriate evidentiary materials, there were no disputed issues of material fact and judgment could, therefore, be entered in their favor as a matter of law. Trear v. Chamberlain, 308 Kan. 932, 935, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). In essence, they argued there was nothing for a jury or a district court judge sitting as fact-finder to decide that would make any difference. Where, as here, the parties seeking summary judgment rely on affirmative defenses, avoidances, or other legal grounds on which they would bear the burden of proof at trial, they must identify undisputed evidence establishing those points. Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, Syl. ¶ 20, 276 P.3d 773 (2012). In opposing summary judgment, the plaintiffs had to cite record evidence calling into question a material factual representation defendants made in support of their motion. Trear, 308 Kan. at 935-36; Shamberg, 289 Kan. at 900. When a party has identified disputed material facts, the motion should be denied in favor of a trial to permit a judge or jury to resolve those disputes after hearing witnesses testify in court and reviewing any relevant documentary evidence.

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Estate of Randolph v. City of Wichita

In addressing a request for summary judgment, the district court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Trear, 308 Kan. at 935- 36; Shamberg, 289 Kan. at 900. An appellate court applies the same standards in reviewing the entry of a summary judgment. Because a summary judgment presents a question of law—it entails the application of legal principles to uncontroverted facts—an appellate court owes no deference to the district court's decision to grant the motion, and review is unlimited. See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009). In its journal entry, the district court made no effort to outline the controlling factual representations or to determine if any of them were materially disputed. Rather, the district court simply adopted by rote all of the individual factual representations the defendants offered in support of their motion and virtually all of the counter representations the plaintiffs submitted in opposition. The journal entry, thus, contains nearly 1,000 purported statements of uncontroverted fact. Most of the factual statements aren't especially relevant to the issues on summary judgment. And a number of them really are opinions or conclusory assertions. As we discuss, some of the most salient facts actually have been disputed in the evidentiary record submitted to the district court. Although we have, of course, looked at the factual findings set out in the district court's journal entry, we have been principally guided by the parties' references in their appellate briefs to those findings and the corresponding parts of the record they consider salient to their legal arguments. As to the affirmative defenses, for example, the defendants have an obligation to set out in their brief the facts material to those issues with citations to where we may find evidence in the record supporting each fact. See Kansas Supreme Court Rule 6.03(a)(3) (2019 Kan. S. Ct. R. 35). We have relied on what the parties have done to satisfy that obligation.

Factual and Procedural History

We offer a condensed factual account focusing on the events directly and immediately bearing on the legal claims. The parties

VOL. 57 COURT OF APPEALS OF KANSAS 691

Estate of Randolph v. City of Wichita are familiar with the extensive background circumstances developed in discovery and outlined in the summary judgment papers, so we do not recite all of that here. Consistent with the standard of review, we offer a narrative in a light favoring the plaintiffs, recognizing there are differing accounts of some of the facts. We mention some of the central discrepancies, but it is not up to us to resolve them now. Randolph was 26 years old when he died. He had a history of significant and sometimes debilitating mental illness. For several years, Randolph had been living with his mother Beverly Alford- Allen. The summary judgment evidence does not provide a formal clinical diagnosis of Randolph. But the materials include records from several mental health care providers who had seen Randolph in the preceding several months. The records variously described Randolph as sometimes delusional, semi-catatonic, and disor- dered in his thinking. The morning of July 4 family members began arriving at the home in anticipation of a cookout later in the day. As we indicated, Randolph was out of sorts—some family members later characterized his disposition as upset or angry. He rebuffed efforts to improve his mood. As the morning wore on, Randolph became more withdrawn and ultimately unresponsive. He had an open pocket knife in his hand much of the time. Although Randolph did not threaten his relatives, they were concerned about his immediate well-being and concluded he probably again needed to be admitted to a mental health facility. About eight weeks earlier, Randolph had become similarly unresponsive, prompting his mother to seek assistance by calling 911 or having a neighbor call on her behalf. The police officers dispatched to the home then helped in getting Randolph transported by ambulance to an in-patient treatment center in Wichita. So on July 4, Randolph's mother called 911. Police Officer Danny Brown was the first to arrive at the house. He met Ran- dolph's mother and other family members in the front yard and had begun talking with them when Officer Snyder arrived. Ran- dolph remained inside. Snyder immediately took control of the discussion. Based on the summary judgment evidence, Brown then literally and figuratively stood aside. Both officers knew they

692 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita had been sent to assist with a mentally ill person rather than to investigate a crime. Alford-Allen and the other family members perceived Snyder as dismissive of their concerns and unwilling to call for an ambulance. He indicated that unless Randolph was dangerous to himself or others or consented to treatment, the authorities could not intervene. An in- creasingly exasperated Alford-Allen explained what had happened before when she contacted 911. She asked that Snyder have a supervising officer come out. In the meantime, at least one family member called 911 and was forwarded to Snyder. Sometime after Snyder arrived—how long isn't particularly clear—Randolph became noticeably agitated. The people in the front yard could hear him making indistinct noises and moving or throwing furniture around. Suddenly, Randolph burst through a screen door and began walking across the front yard. In later accounts, those in the front yard offered differing descriptions of Randolph's movements. Family members said he was strolling almost aimlessly with what has been called a thousand-yard stare—meaning a vacant, un- focused gaze—and his hands at his sides. Snyder described Randolph as walking quickly and "aggressively"; he said Randolph looked directly at him. Briana Alford, one of Randolph's sisters, said everyone except Snyder stepped away from Randolph. She described Snyder as moving into Randolph's path. Ida Allen, another sister, said Snyder went toward Randolph and "put himself there" as if he "went like to engage" Randolph. Several family members told Randolph to go back into the house, but he appeared oblivious to their requests. Randolph still had the knife in one of his hands, although everyone seems to agree that he had not raised his hands or brandished the knife. As Randolph came closer, Snyder drew his Taser and fired it at Randolph. The evidence indicates at least one of the two pronged wires from the Taser struck Randolph, but he did not stop walking in response to the electrical charge. In his deposition, Snyder testified that as Randolph was shocked, he lifted his arms and hands. Snyder said he then saw the knife for the first time. The knife had a four-inch blade. In his deposition, Snyder testified he was certain that Randolph was getting ready to stab him. But Snyder also testified in the same deposition that Randolph may have involuntarily lifted his arms in

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Estate of Randolph v. City of Wichita response to the Taser charge. And Snyder acknowledged that in a tape-recorded statement he gave shortly after Randolph's death, he said, "[W]ell, he has a knife now, maybe he is trying to come up and stab [me]." After seeing the knife, Snyder dropped the Taser and drew his pistol. As he backed away and as Randolph continued to walk forward, Snyder fired four shots at Randolph's chest. Randolph immediately fell to the ground and may have been within 6 feet of Snyder. The knife lay in the grass next to Randolph. The evidence indicates Randolph quickly died from the gunshot wounds. Alford-Allen ran toward Randolph after he had been shot and had collapsed. Snyder pointed his pistol at her and ordered her to back away from Randolph. One of the officers reported to the police dispatcher that shots had been fired and requested an ambulance. In his deposition testimony, Snyder said he had backed up almost against a car parked in the driveway when he shot Randolph. He acknowledged he had three "avenues of escape." He could have "go[ne] over the car"; he could have gone to the right toward the backyard, although he would have encountered a fence; or he could have gone to the left toward the street. Snyder has not asserted Ran- dolph committed a crime or, more precisely, that he was attempting to arrest Randolph when he used his Taser or fired his pistol. Randolph's estate and his relatives present at the home filed a civil action in the district court on June 30, 2015, against Snyder and Brown. They amended the petition without objection about six months later adding the City of Wichita as a defendant. The record shows the parties spent almost two years in discovery, punctuated by many motions to the district court to resolve an array of disputes. As we have indicated, the defendants filed a joint motion for summary judgment premised on their lack of legal liability on any of the plaintiffs' claims. The plaintiffs duly responded. The district court filed its journal entry granting summary judgment to the defendants on Janu- ary 2, 2018. Plaintiffs have appealed.

LEGAL ANALYSIS

Summarizing the Claims at Issue

At the outset, we draw from the amended petition to identify specifically the plaintiffs and their legal claims at issue on appeal:

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Estate of Randolph v. City of Wichita

 Estate of Icarus Randolph. The estate alleges:

(1) A negligence claim against Snyder for failing to follow police department policies after he arrived at the Ran- dolph residence, particularly Policy 519 pertaining to contacts with mentally ill persons in need of assistance. Had Snyder conformed his conduct to the policy, the estate contends the situation would not have escalated to a fatal shooting. (2) A negligence claim against Brown for failing to intervene when Snyder deviated from Policy 519; (3) Negligent use of force by Snyder for deploying his Taser and firing his pistol; and (4) The intentional torts of assault and battery against Snyder for deploying his Taser and his pistol.

The estate also alleges what it characterizes as a wrongful death claim against Brown and Snyder under K.S.A. 2018 Supp. 60-1901(a). The wrongful death statute allows the recovery of specified damages when one person's "wrongful act or omission" results in the death of another person. So any liability of Brown or Snyder rests on the wrongful conduct otherwise attributed to each of them causing Randolph's death.

 Family members: Beverly Alford-Allen; Briana Alford; Ida Allen; Saul Gallego, Randolph's nephew; Elisa Allen, another of Randolph's sisters; and Elisa Allen's minor children Tyree Straughter, Jr., Tylisia Straughter, and Adore Potts. They allege:

(1) Snyder was negligent in failing to follow police policies, including Policy 519, leading to Randolph's death and to tortious conduct directly harming them; (2) Snyder committed the intentional tort of assault against them, when he displayed his Taser and drew his pistol; and (3) Snyder negligently and intentionally inflicted emotional distress on them based on his conduct leading up to and then fatally shooting Randolph.

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Estate of Randolph v. City of Wichita

 Beverly Alford-Allen. She alleges a separate claim of assault against Snyder when he pointed his pistol at her as she approached Randolph after he had been shot.[1]

[1]The plaintiffs included a number of additional theories of recovery in their amended petition. Those claims have been dis- claimed or abandoned as the case has progressed, so we need not address them.

The plaintiffs allege the City of Wichita is liable as the employer of Snyder and Brown based on respondeat superior or vicarious liability. They have not asserted any theories of direct liability against the City. All of the bases for liability rest on common-law torts. The plaintiffs have not sought recovery on any ostensible constitutional deprivations or other claims rooted in federal law. The KTCA, therefore, governs all of the claims and guides our review on appeal.

KTCA Principles

Broadly considered, the KTCA strips away sovereign immunity and makes government entities and their employees liable for their negligent and otherwise tortious conduct to the same extent as their private sector counterparts, subject to a set of specific statutory immunities. See K.S.A. 75-6103(a). Under the KTCA, municipal liability is, therefore, the rule and immunity the exception. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 233, 262 P.3d 336 (2011); Kansas State Bank & Tr. Co. v. Spe- cialized Transportation Services, Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991). The KTCA contains an extensive, though nonexclusive, list of immunities. K.S.A. 75-6104. Again, as a general matter, the immunities are to be narrowly construed consistent with the overarching rule of governmental liability. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984) (KTCA creates a "general rule of governmental liability" subject to exceptions that are to be given a "strict or narrow interpretation."), overruled on other grounds by Simmons v. Porter, 298 Kan. 299, 312 P.3d 345 (2013); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 290, 261 P.3d 943 (2011). A statutory immunity constitutes a legal

696 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita avoidance of or affirmative defense to liability, so the governmental party asserting an immunity bears the burden of proving its applicability at trial. Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010); Jackson, 235 Kan. at 286. As we have said, on summary judgment, a party relying on an affirmative defense must present uncontroverted facts establishing the defense. See Golden, 47 Kan. App. 2d at 497.

Self-defense Privilege

A person threatened with physical harm has a right to respond with a display of force or the actual use of force including, in certain circumstances, deadly force. The response, however, must be reasonably calibrated to the apparent harm. See K.S.A. 2018 Supp. 21-5222. This right of self-defense justifies conduct that absent an aggressor's initial threat would itself amount to a criminal or civil wrong, typically a form of assault or battery. The law commonly refers to self-defense as a privilege in the sense that it permits or justifies in particular circumstances intentional conduct that otherwise would be unlawful. See State v. Andrew, 301 Kan. 36, 47, 340 P.3d 476 (2014) (noting "'privilege of using force in self-defense'" in context of trespasser in dwelling) (quoting Peo- ple v. Toler, 9 P.3d 341, 353 [Colo. 2000]); Restatement (Second) of Torts §§ 63, 65 (1965); Prosser and Keeton, Law of Torts § 19 (5th ed. 1984) ("The privilege of self-defense rests upon the ne- cessity of permitting a person who is attacked to take reasonable steps to prevent harm."). Self-defense, then, is an avoidance in a civil action for damages, so the defendant relying on it bears the burden of proof. Red- ding v. Shelton's Harley Davidson, Inc., 139 N.C. App. 816, 821, 534 S.E.2d 656 (2000) (privilege presents affirmative defense to civil battery on which defendant bears burden of proof); Prosser and Keeton, Law of Torts § 16 (5th ed. 1984) (defendant must "plead and prove" privilege or justification excusing conduct otherwise amounting to intentional tort); 6A C.J.S., Assault § 49 (defendant bears burden of proving privilege or justification of self- defense as affirmative defense to battery). The Kansas pattern jury instructions treat self-defense as an affirmative defense that the defendant must prove at trial. See PIK Civ. 4th 106.01 (burden of

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Estate of Randolph v. City of Wichita proof for affirmative defenses); PIK Civ. 4th 127.04 Notes on Use (instruction on self-defense should be given with PIK Civ. 4th 106.01 on burden of proof for affirmative defenses). The Kansas Legislature has codified self-defense. K.S.A. 2018 Supp. 21-5221 et seq. Although cataloged among the principles of criminal liability, those statutes also govern self-defense as a privilege against liability for intentional torts, such as assault and battery. See K.S.A. 2018 Supp. 21-5231(a) (statutory self-defense provides immunity to civil actions based on that use of force). Un- der K.S.A. 2018 Supp. 21-5222(b), a person has a right to use "deadly force" to defend himself or herself against the infliction of "imminent death or great bodily harm." Deadly force as a means of self-defense is that degree of force "likely to cause death or great bodily harm" to the aggressor and necessarily permits the use of handguns, knives, or other lethal weapons. K.S.A. 2018 Supp. 21-5221(a)(2). In the face of a threat of less than death or great bodily harm, a person may defend himself or herself with what might be characterized as ordinary force. That degree of permissible force entails threats to use force, including deadly force; "display" of a weapon or other "means of force"; and "the application of" less than deadly force. See K.S.A. 2018 Supp. 21- 5221(a). To act in self-defense, a person must "reasonably believe" both a physical threat exists and the degree of force he or she uses in response to be necessary under the circumstances. K.S.A. 2018 Supp. 21-5222. The required statutory belief has subjective and objective components, meaning, first, the person must honestly believe he or she is in immediate danger necessitating the use of that degree of force against an aggressor (subjective component) and, second, an objectively reasonable person would also view the circumstances that way (objective component). See Andrew, 301 Kan. at 45. The statutorily codified self-defense privilege applies to law enforcement officers acting within the scope and course of their employment. But the self-defense privilege is distinct from the immunities extended to government agents under the KTCA and is equally available to private parties. As we discuss, if a government agent's intentional threat or use of force cannot be justified as self-

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Estate of Randolph v. City of Wichita defense, KTCA immunities may be unavailable to shield that conduct.

Negligence Claims Based on Conduct Before Randolph Leaves House

Randolph's estate and the family members at the residence make parallel negligence claims based on how Snyder and Brown acted leading up to Snyder's use of his Taser and pistol. Basically, they claim Snyder mismanaged the family's request for help with Randolph, leading directly to the fatal shooting. And they fault Brown for failing to intervene in light of Snyder's flawed approach. The claims are legally of a kind and may be addressed together. Actionable negligence first requires that the alleged wrongdoer owe a legally recognized duty of due care to the injured party, and the wrongdoer must then breach that duty in a way causing the injury. Estate of Belden, 46 Kan. App. 2d 247, Syl. ¶ 7. Lack of due care typically entails doing something a reasonable person would not do under the circumstances or failing to do something a reasonable person would do. Elstun v. Spangles, Inc., 289 Kan. 754, 756, 217 P.3d 450 (2009). So a defendant's affirmative conduct or inaction may be negligent depending on the circumstances. Whether a duty exists presents a question of law. Adams, 289 Kan. 577, Syl. ¶ 4. Breach of a lawful duty and the causal connection between a breach and the claimed injury are questions of fact. Cal- well v. Hassan, 260 Kan. 769, Syl. ¶ 3, 925 P.2d 422 (1996); Es- tate of Belden, 46 Kan. App. 2d 247, Syl. ¶ 13. Snyder, Brown, and the City have interposed various defenses and immunities under the KTCA to those negligence claims. We need not explore all of them because we find the discretionary function immunity in K.S.A. 75-6104(e) to be legally sufficient to support the district court's summary judgment on those claims. We have described the immunity this way:

"Discretionary function immunity under the KTCA comes into play when a government actor makes a choice among policy options in addressing a given set of circumstances. Kansas State Bank & Tr. Co., 249 Kan. at 365 ('[A] discretionary function must involve some element of policy formulation.'). But discretionary function immunity does not protect a decision simply because it entails a selection between taking an action and refusing to take that action. If that were

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Estate of Randolph v. City of Wichita true, discretionary function immunity would eliminate governmental tort liability, since virtually every decision to act or to refrain from acting involves some degree of choice. 249 Kan. at 365. ('[T]he mere exercise of some judgment cannot be the test for a discretionary function because judgment is exercised in almost every human endeavor.') (internal quote omitted). Rather, the decision must reflect something more—a course of conduct grounded in legitimate options requiring an exercise of reasonable judgment to select one option over the others. Hesler v. Osawatomie State Hospital, 266 Kan. 616, 633, 971 P.2d 1169 (1999)." Estate of Belden, 46 Kan. App. 2d at 291-92.

Under K.S.A. 75-6104(e), the protected discretion lies in the choice among otherwise reasonable options. So a government agent cannot be successfully sued for selecting one reasonable course of action over other reasonable approaches, although one of the discarded approaches arguably might have been better. And the method of choosing among them or exercising that discretion is shielded, even if the method is largely unstudied, wholly arbitrary, or in the language of the statute otherwise "abused." The immunity, however, does not protect a government agent's choice of a patently unreasonable or plainly wrongful course of conduct over other options. See Thomas, 293 Kan. at 236 (discretionary function immunity does not shield choice among available options that violates legal duty); Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988) ("The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty."); Schreiner v. Hodge, 55 Kan. App. 2d 50, 73, 407 P.3d 264 (2017) (Atcheson, J., concurring in part, dissenting in part) ("A deliberate choice to act in a plainly unlawful way cannot be the sort of decision-making protected by discretionary function immunity."), rev. granted 308 Kan. 1595 (2018). Nor does discretionary function immunity shielding the choice of a reasonable option then itself shield the inept or negligent imple- mentation of that option. See Nero v. Kansas State University, 253 Kan. 567, 586-88, 861 P.2d 768 (1993). The Kansas Supreme Court recently reiterated the discretionary function immunity does not extend to "minute" choices government actors may make in performing their duties, especially at a "low level" within the organization. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 798, 450 P.3d 330, 346 (2019). But the Kansas appellate courts have broadly applied discretionary function immunity to

700 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita insulate decisions law enforcement officers make in the field when responding to specific incidents. See Woodruff v. City of Ottawa, 263 Kan. 557, 566-67, 951 P.2d 953 (1997) (Tactical decisions of police officers acting in the field may constitute immunized discretionary functions.); Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982). Here, the plaintiffs fault Snyder for not promptly assessing Randolph's condition or summoning an ambulance. And they con- demn both his general attitude and his refusal to call a supervisor to the scene. The evidence, however, shows that Snyder inquired whether Randolph posed an immediate danger to himself or the family members. He expressed concern about the availability of an in-patient facility on a holiday and about forcing Randolph to get treatment if he didn't want to. All of that played out over about 10 minutes. Although Randolph's family understandably found Snyder's manner of surveying the circumstances and his general comportment to be unhelpful and, as they put it, dismissively indifferent, he appeared to be weighing legitimate competing interests. The family members had genuine concerns about Randolph's well-being. But Randolph also had a right not to be involuntarily committed for evaluation or treatment if he were not dangerous. The ex- traordinarily tragic turn of events does not, in and of itself, change the legal complexion of Snyder's deliberative conduct beforehand. Neither he nor Brown had made a determinative decision about how to handle the situation when Randolph came through the screen door and into the front yard. Snyder's actions to that point fit within the discretionary function immunity afforded police officers in the field. Snyder may have been brusque or even rude, but he had not engaged in obviously wrongful conduct. See Thomas, 293 Kan. at 236; Estate of Belden, 46 Kan. App. 2d at 292. The plaintiffs contend that the police department's Policy 519 addressing responses to calls for assistance involving mentally ill persons undercuts any reliance on the discretionary function immunity. We disagree. If a policy or procedure dictates a precisely defined course of conduct or result, then discretionary function immunity

VOL. 57 COURT OF APPEALS OF KANSAS 701

Estate of Randolph v. City of Wichita cannot apply for the very reason that the policy or procedure necessarily precludes choosing among options or the exercise of what would be protected discretion. Thomas, 293 Kan. at 235 (mandatory policy precluding discretionary function immunity "leaves little to no room for individual decision making, exercise of judgment, or use of skill, and qualifies a defendant's actions as ministerial rather than discretionary"); Soto v. City of Bonner Springs, 291 Kan. 73, 80, 238 P.3d 278 (2010). Policy 519 is not of that tenor. To the contrary, the policy outlines general practices that officers "should consider applying" in responding to a mental health call, such as "[r]emain calm," "[p]resent a genuine willingness to understand and help," and "[a]ssess safety issues." The policy also identifies approaches that typically should be avoided. In short, Policy 519 consists of what may be characterized as good or even best practices, but those practices are so generically stated that they likely would be almost universally adaptable to most police contacts with citizens, apart from suspects actively engaged in serious or violent crimes. Moreover, the language of the policy identifies the practices as suggested approaches and not mandatory standards supplanting on-the-scene discretion. We conclude that discretionary function immunity under K.S.A. 75-6104(e) precludes the negligence claims against Snyder based on his conduct up to the time Randolph came out of the house. Brown must likewise be shielded for his inaction to that point in not intervening more directly in how Snyder handled the situation and dealt with the family members. Snyder and Brown also contend the public duty doctrine immunized them for their conduct up to the time Randolph came out of the house. The doctrine essentially rests on the idea government agents owe a duty to the general public in performing their jobs competently. But a careless or negligent performance does not breach a duty legally owed any specific person. So someone harmed as the result cannot establish an actionable breach of a duty owed him or her as a necessary element of a cognizable tort claim. See Williams, 310 Kan. at 788-89, 450 P.3d at 340 (describing doctrine); Hopkins v. State, 237 Kan. 601, 611, 702 P.2d 311 (1985). Because discretionary function immunity is sufficient to support the district court's ruling on those negligence claims, we need not consider the public duty doctrine. See Keiswetter v. State, 304 Kan. 362, 373, 373 P.3d 803 (2016).

702 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita

Estate's Claims Based on Conduct After Randolph Leaves House

The estate contends Snyder committed the intentional torts of assault and battery against Randolph in using both his Taser and his pistol. A civil assault entails the threat of bodily harm coupled with the apparent ability to carry out the threat resulting in the victim's immediate apprehension of harm. Baska v. Scherzer, 283 Kan. 750, 756, 156 P.3d 617 (2007). The actionable injury is the victim's apprehension and, thus, his or her mental disturbance resulting from the threat. 6 Am. Jur. 2d, Assault and Battery § 88; Prosser and Keeton, Law of Torts § 10 (5th ed. 1984). Civil battery entails an unprivileged intentional touching with the purpose of bringing about a harmful or offensive contact. Baska, 283 Kan. at 756. The compensable harm derives from the nature and extent of the contact. Prosser and Keeton, Law of Torts § 9 (5th ed. 1984). The wrongdoer may be held accountable if he or she has the intent to cause a physical injury or an otherwise offensive physical contact. McElhaney v. Thomas, 307 Kan. 45, 55-56, 405 P.3d 1214 (2017). The facts, taken favorably to the plaintiffs, show that Ran- dolph had no appreciation of what was going on around him as he barreled out of the house and walked across the front yard. Con- sistent with the description of his thousand-yard stare, Randolph did not respond to his family's urgent entreaties to go back inside. Family members characterized Randolph as behaving almost au- tonomically, replicating his condition weeks earlier when he had been diagnosed as catatonic. Randolph did not visibly recoil or otherwise react when Snyder drew his Taser. Randolph's reaction to being struck with the Taser is open to dispute, as Snyder's own conflicting accounts establish. Finally, Randolph showed no reaction to Snyder drawing and pointing his pistol, although the officer didn't wait any appreciable time before firing. Based on that rendition of the facts, the estate has failed to present evidence from which reasonable jurors could conclude that Randolph comprehended that Snyder had pointed any weapons at him. Just as Randolph was oblivious to his surroundings and his family, he would have been oblivious to the Taser and the

VOL. 57 COURT OF APPEALS OF KANSAS 703

Estate of Randolph v. City of Wichita pistol aimed at him. He, therefore, would not have had an apprehension of harm or much of anything else. According to the accounts of family members, Randolph did not flinch or otherwise react when Snyder confronted him with the Taser and then the pistol. The district court properly granted summary judgment on the estate's claims for assault. We do not consider the alternative arguments Snyder has advanced for relief from those claims. The estate has alleged Snyder committed two distinct batteries of Randolph, first by discharging the Taser and then by firing his pistol, inflicting a fatal injury. We initially consider whether either battery can be considered privileged self-defense and then examine how the KTCA immunities might apply. We conclude that disputed issues of material fact preclude summary judgment on these claims. We suppose without deciding that Snyder's deployment of the Taser amounted to the use of ordinary rather than deadly force for purposes of the self-defense statutes. See K.S.A. 2018 Supp. 21- 5221(a) (distinguishing between "use of force" and "use of deadly force"); State v. Carter, 55 Kan. App. 2d 511, 519, 419 P.3d 55 (2018) (Taser designed as nonlethal weapon and should not be considered deadly weapon, although use may cause death or serious bodily injury in rare instances), rev. granted 309 Kan. 1350 (2019). As we have explained, statutory self-defense requires both a subjective belief and an objective determination that the degree of force used was necessary to fend off an unlawful attack. Despite the myriad facts the parties submitted on summary judgment and the district court's wholesale acceptance of those facts, none of them appear to address why Snyder deployed his Taser. We are not obligated to comb through the supporting evidentiary materials in search of facts the parties have neither identified in their appellate briefs nor presented in their memoranda to the district court addressing the motion. The facts indicate Snyder did not use the Taser to effect an arrest of Randolph. But that negative inference fails to establish why he did act. As the party relying on self-defense, Snyder had the obligation to come forward with undisputed facts supporting his use of the Taser for self-defense or some other legitimate reason. He has not done so. The

704 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita void is particularly troublesome with respect to Snyder's subjective belief as to why he used the Taser. Filling that void would require us to draw inferences against the plaintiffs, contrary to the standard for ruling on summary judgment motions. We, therefore, cannot say for purposes of summary judgment that a reasonable jury would necessarily find Snyder acted in privileged self-defense in tasing Randolph. The analysis of Snyder's use of his pistol to shoot Randolph as an act of self-defense is more involved. First, of course, discharging the pistol constituted deadly force within the meaning of K.S.A. 2018 Supp. 21-5221(a)(2), and Snyder could do so only to "prevent imminent death or great bodily harm" to himself or someone else. K.S.A. 2018 Supp. 21-5222(b). Again, to support summary judgment, Snyder had to identify evidence establishing that he subjectively believed deadly force was necessary and that an objectively reasonable person in the same situation would hold a like belief. As we have already explained, the evidence developed in the summary judgment record includes factual disputes bearing on this issue. First, family members characterized Randolph as unresponsive and oblivious as he walked across the yard. His affect was flat rather than aggressive or violent. Snyder described Ran- dolph as far more deliberative and directed in his actions and suggested his comportment was threatening. At this stage, we have to accept the account of the family members. And that version weighs against objective support for the use of deadly force. The family members similarly indicated Randolph had the knife at his side and never brandished it in a threatening manner. In his deposition, Snyder testified inconsistently about his assessment of Randolph as he saw the knife. Without belaboring what we've already discussed, Snyder testified that Randolph raised his hand with the knife in an aggressive way indicative of an imminent attack. But he also testified Randolph may have lifted his hands and arms in an involuntary response to the electric shock from the Taser—a reaction that he wouldn't have viewed as a life-threatening assault. And Snyder acknowledged an earlier recorded statement he gave indicating an attack might be a possibility. Those varied descriptions are sufficiently discordant to call into question

VOL. 57 COURT OF APPEALS OF KANSAS 705

Estate of Randolph v. City of Wichita

Snyder's subjective belief when he shot Randolph, especially as a necessary component of a self-defense privilege. Snyder, therefore, cannot rely on self-defense to warrant summary judgment on the estate's claims for battery. In so ruling, we cannot and do not offer any suggestion about what a fact-finder might decide, since that would depend on credibility determinations we are in no position to make. See Estate of Belden, 46 Kan. App. 2d at 280. In his brief, Snyder offers several legal arguments to bolster his self-defense privilege. We find them unavailing. First, he notes law enforcement officers have the authority to use force, including deadly force in some situations, to effect an arrest or to protect themselves during the course of an arrest. K.S.A. 2018 Supp. 21- 5227. But the facts on summary judgment do not show that Snyder sought to arrest Randolph. Second, he points out that individuals who are attacked need not retreat before acting in self-defense; they may, in the popular phrase, stand their ground. K.S.A. 2018 Supp. 21-5230. The stand-your-ground rule would appear to apply to law enforcement officers invited onto private property to assist with mentally ill persons. But, as we have described, the summary judgment facts taken favorably to the plaintiffs do not establish that Snyder merely stood his ground. Rather, he moved toward Randolph, as if to engage him. Nor do the facts, taken in that light, establish that Randolph was attacking Snyder, so much as just walking in his direction in a deep stupor. Most prominently, however, Snyder contends we should apply the standard used to assess constitutional torts for a government agent's use of excessive force in violation of the Fourth Amendment to the United States Constitution. A government agent intentionally applying undue force to an individual violates that person's Fourth Amendment right against unreasonable seizures. The victim may bring an action for damages against the individual government actor and, in some circumstances, the government entity under 42 U.S.C. § 1983. A civil action for excessive force violating the Fourth Amend- ment looks at the degree of force an objectively reasonable law enforcement officer would use in comparable circumstances. The

706 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita claim does not consider the defendant officer's subjective belief about the appropriate measure of force. Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Cass v. City of Dayton, 770 F.3d 368, 374-75 (6th Cir. 2014). The standard promotes uniformity across cases and, thus, in the protection of a fundamental constitutional right; that uniformity would be lost if an officer's subjective belief were either a sufficient defense alone or a necessary component of a defense. Cf. Devenpeck v. Alford, 543 U.S. 146, 153-54, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (law enforcement officer's state of mind irrelevant to constitutional propriety of Fourth Amendment seizure; contrary rule would recognize or reject constitutional violations arising from in- distinguishable external factual circumstances based solely on subjective intent). In short, constitutional reasonableness (or unreasonableness) in excessive force cases brought under § 1983 is measured by an objective standard alone. But that standard for a § 1983 claim based on a Fourth Amendment violation has no direct bearing on a claim for common-law battery under state law. They are two different legal claims or theories of liability, even though they may arise from a shared set of facts. Plaintiffs may pick and choose among possible theories of liability and need not assert every claim legally available to them. If they do not bring a particular claim—say, a constitutional tort under § 1983—in favor of other claims, they for- sake any relief specific to that claim. By the same token, however, they cannot be subject to defenses specific to that claim. See Golden, 47 Kan. App. 2d at 463-64. The State, acting through the Legislature, defines the liability of its agents for common-law torts. In years past, Kansas afforded those agents broad tort immunity but changed course with the adoption of the KTCA. And the KTCA now fixes the scope of liability and the concomitant immunities for claims grounded in state law. See Keiswetter, 304 Kan. at 366 (establishing government liability and any exceptions or immunities are "matters of public policy left to the legislature"). By generally characterizing the liability of government agents to be comparable to private citizens, the Legislature effectively recognized self-defense, as established in Kansas law, to be a shield to claims for intentional

VOL. 57 COURT OF APPEALS OF KANSAS 707

Estate of Randolph v. City of Wichita torts, such as assault and battery, made against law enforcement officers. So self-defense as outlined in K.S.A. 2018 Supp. 21-5221 et seq. creates whatever privilege may be extended to Snyder in resisting the estate's claim for common-law battery. The measure of appropriate force in determining a constitutional injury based on a violation of Randolph's Fourth Amendment rights—a theory of liability the estate has never pursued in this case—neither dictates nor shapes the self-defense privilege to the battery claim it has pursued. Snyder also contends the district court properly granted summary judgment on the estate's claim of battery under four of the specific immunities in K.S.A. 75-6104. We consider each of those immunities. First, Snyder cites discretionary function immunity. As we have already explained, the immunity covers a choice made among reasonable options in the absence of any policies or procedures mandating a specific course of conduct. So if a government agent selects an appropriate option that nonetheless injures a third party, the decision and any resulting harm to a third party typically would be shielded from tort liability. But the agent's decision to act in a way that is plainly improper or unlawful does not amount to an exercise of protected discretion. Here, if Snyder shot Randolph in self-defense, the decision would be a legally appropriate choice, though not necessarily the only or best option, and would be immunized as a discretionary function. Conversely, if Snyder were not privileged to shoot in self-defense, the decision to resort to deadly force would be wrongful. And it, therefore, could not be a protected discretionary act. See Fry v. City of Galena, 450 F. Supp. 2d 1236, 1247 (D. Kan. 2006). Since we have found disputed issues of material fact as to Snyder's assertion of self-defense, his reliance on discretionary function immunity similarly cannot be resolved on summary judgment. Where, as here, the allegedly tortious conduct entails an intentional act that is either wrongful or privileged, the discretionary function immunity really adds little to the mix. The determination on privilege necessarily drives the outcome. Snyder also invokes the statutory immunity for a failure to provide or "the method of providing" police or fire protection.

708 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita

K.S.A. 75-6104(n). This provision clearly shields systemic or policy decisions a governmental entity may make, such as where to build a fire station or how to assign patrol officers across a municipality. And it arguably reaches operational or tactical decisions made in the field as law enforcement officers or firefighters respond to particular incidents. To that extent, the immunity effectively parallels or codifies the protections of the public duty doctrine. But those protections do not cover intentional acts that are tortious. Beck v. Kansas Adult Authority, 241 Kan. 13, 33, 735 P.2d 222 (1987) (KTCA immunities do not shield wrongful willful acts, i.e., those involving "an intentional act and intentional injury"); Hopkins v. State, 237 Kan. 601, 611, 702 P.2d 311 (1985) (immunities in K.S.A. 75-6104 apply to negligent acts or omis- sions but not to "acts . . . involving more than the lack of ordinary care"); Caplinger v. Carter, 9 Kan. App. 2d 287, 295, 676 P.2d 1300 (1984) (KTCA immunities do not shield law enforcement officer's intentional use of otherwise unprivileged force); Nicol v. Auburn-Washburn USD 437, 231 F. Supp. 2d 1092, 1106 (D. Kan. 2002) (KTCA immunities do not apply to intentional torts). As the court explained in Hopkins, "[a] law enforcement officer who acts maliciously or wantonly . . . acts outside the protection afforded by the [KTCA]." 237 Kan. at 611. As with discretionary function immunity, Snyder would not be entitled to protection under K.S.A. 75-6104(n) if the shooting of Randolph were unprivileged. Absent self-defense or some other legal justification, deliberately shooting another person four times would be an intentional tort evincing maliciousness or wanton- ness. Snyder next says he is entitled to what's known as "adoptive immunity" under K.S.A. 75-6104(i). That subsection extends immunity to "any claim" that is either "limited or barred by any other law" or based on the actions of a government agent or employee who is otherwise immune from suit or damages. So it incorporates or adopts an immunity originating in some other source. By way of example, K.S.A. 75-6104(i) would adopt the immunity in K.S.A. 2018 Supp. 21-5231(a) precluding civil actions against persons for using appropriate force to defend themselves. The self-defense immunity creates a barrier not only against a finding

VOL. 57 COURT OF APPEALS OF KANSAS 709

Estate of Randolph v. City of Wichita of liability and an adverse judgment but also against having to participate in the litigation process at all. Presumably, the self-defense immunity afforded a government agent would pass through to any affiliated governmental entity under the second clause of K.S.A. 75-6104(i).[2]

[2]The defendants in this case have not expressly asserted the immunity against litigation, and the parties have not discussed its ramifications, including any procedural devices apart from summary judgment that might be used to assert that immunity in a civil action. We need not and do not venture into that area uninvited.

Snyder, however, submits he would be entitled to qualified immunity on an excessive force claim brought under § 1983 for a violation of Randolph's Fourth Amendment rights. And, he says, that immunity should be adopted through K.S.A. 75-6104(i) to cut off liability for the battery claim. We are unpersuaded. Qualified immunity is a common-law doctrine affording government agents a limited protection against claims for damages resulting from alleged violations of the United States Constitution or other federal law. The immunity applies in § 1983 actions unless the government agents have violated "a federal statutory or constitutional right" and the wrongfulness of their conduct was "'clearly established at the time'" they acted. District of Columbia v. Wesby, 583 U.S. ___, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed. 2d 985 [2012]). As a matter of public policy, judicial recognition of qualified immunity ostensibly encourages government officials and employees to act vigorously in performing their duties free from a fear they will be heavily burdened by insubstantial or harassing civil suits challenging those actions as violations of federal law. See Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). We need not venture deep into the thicket of qualified immunity, especially as it has grown up around Fourth Amendment claims, to resolve Snyder's assertion of adoptive immunity. To advance the analysis, we assume more or less arbitrarily that Snyder might, indeed, be entitled to qualified immunity had the estate brought a § 1983 claim based on a violation of Randolph's Fourth

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Estate of Randolph v. City of Wichita

Amendment rights. As we have already explained, the estate has not, and, in turn, the law applicable to that constitutional wrong has no particular legal significance in resolving the state law tort claim for battery. The KTCA's adoptive immunity provision similarly does not incorporate qualified immunity. The statutory language confines the adopted immunities to those that would apply to the claims actually asserted against the governmental entity or agent. Not to belabor the point, a § 1983 claim for a constitutional wrong is not the same as a state tort claim for battery, even if they are based on the same incident. The elements of liability and the available remedies differ significantly. The Legislature did not intend to allow a government entity or agent to rely on some immunity having no direct application to the claims actually being litigated. To construe K.S.A. 75-6104(i) in the manner Snyder promotes, we would have to give the statutory language, particularly the phrase "any claim," an expansive interpretation also incorporating immunities to other factually or legally similar claims. That expansion would conflict with the narrow reading to be given the immunities as exceptions to the general rule of liability under the KTCA. Moreo- ver, it would impermissibly add a substantive legal concept not readily found in the statutory language. Robinson v. City of Wich- ita Employees' Retirement Bd. of Trustees, 291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court "will not speculate on legislative intent and will not read the [statutory] provision to add something not readily found in it."); Unruh v. Purina Mills, 289 Kan. 1185, 1201, 221 P.3d 1130 (2009) (rejecting an argument that "asks the court to read into the statute language that is not present"). Until now, the Kansas appellate courts have not considered whether qualified immunity could be applied to state tort claims under K.S.A. 75-6104(i). Federal District Court Judge John W. Lungstrum examined the question and, for essentially the same reasons we have outlined, concluded qualified immunity should not be adopted through K.S.A. 75-6104(i) to bar various state law tort claims. Gilliam v. U.S.D. No. 244 School Dist., 397 F. Supp. 2d 1282, 1289-91 (D. Kan. 2005). Before Gilliam, several federal district court cases construed adoptive immunity under K.S.A. 75- 6104(i) as incorporating qualified immunity. Arceo v. City of

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Estate of Randolph v. City of Wichita

Junction City, Kansas, 182 F. Supp. 2d 1062, 1094 (D. Kan. 2002); Estate of Fuentes ex rel. Fuentes v. Thomas, 107 F. Supp. 2d 1288, 1305 (D. Kan. 2000); Grauerholz v. Adcock, No. 00- 1520-JTM, 2002 WL 226405, at *6 (D. Kan. 2002) (unpublished opinion). None of them, however, articulated any explanation for that result. In their collective silence, they are something less than compelling. Finally, Snyder makes a brief generic argument under K.S.A. 75-6104(d) that immunizes the adoption or enforcement or the failure to adopt or enforce "any written personnel policy which protects persons' health or safety." The statute also states any such policy does not itself create a legally enforceable duty owed the persons protected. As we understand the argument, Snyder says the estate (and Randolph's family members) cannot rely on Policy 519 covering responses to mental health calls or the police department's use of force policy to establish any legal duty on his part. We don't see that this argument alters the legal landscape. As we have explained, Policy 519 consists of general recommendations that lack sufficient specificity to create legal duties. The department's use of force policy, at least as it may pertain here, tracks the self-defense principles codified in K.S.A. 2018 Supp. 21-5221 et seq. and is, therefore, no more restrictive in defining how officers may defend themselves in the field. So Snyder's argument doesn't advance an independent basis for summary judgment. In sum, we conclude the district court erred in granting summary judgment on the estate's claim for civil battery against Snyder. The estate brought a claim of negligent use of force against Snyder for deploying his Taser and firing his pistol at Randolph. Snyder has countered that Kansas does not recognize a cause of action for negligent use of force and, even if the state did, the undisputed facts would not support liability. We are disposed to conclude such a claim likely exists under Kansas law but not on these facts. Upon a cursory look, negligent use of force seems to be a strange tort, since the application of force typically entails an intentional act and, thus, seems at odds with a claim grounded in careless or inadvertent conduct. But, as with much in the law,

712 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita looks can be deceiving, and first impressions often yield to the nuance of more studied review. Some unusual scenarios involving law enforcement officers suggest an analytical basis for the claim. Given our resolution of the issue, however, we do not dwell on those possibilities.[3]

[3] A couple of examples grow out of Kansas cases:

A law enforcement officer uses force to arrest a resisting suspect on a misdemeanor charge by applying a jujitsu throw that leaves the arrestee with permanent physical injuries not normally associated with the martial arts maneuver. See Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983). In that situation, an officer would be privileged to use some force to make a misdemeanor arrest. But force resulting in great bodily harm to or the death of the arrestee might not be privileged. Although the officer in the hypothetical intended to use force, he did not intentionally apply force he believed would cause serious injury to the arrestee. The degree of force to effect an arrest involves a different calculus than force used in self-defense. So the example isn't directly analogous to this case. A law enforcement officer in a patrol car pursues a suspected felon fleeing on foot down a street. The officer tries to keep pace with the suspect and to herd the suspect into an open field where officers on foot might more easily apprehend him. Although the officer disclaims any intent to hit the suspect, the patrol car strikes the suspect and injures him. See Clark v. Thomas, 505 F. Supp. 2d 884, 891 (D. Kan. 2007) (factually similar incident). In that hypothetical, the officer lacked the requisite intent to commit a civil battery but arguably engaged in a reckless course of conduct in- juring the suspect through physical contact. Here, Snyder intentionally used force, materially distinguishing the example. Several federal district court judges have indicated Kansas would recognize a claim for negligent use of force and have declined to dismiss those claims as legally unfounded. See, e.g., Richard v. City of Wichita, No. 15-1279-EFM-KGG, 2016 WL 5341756, at *8 (D. Kan. 2016) (unpublished opinion); Patterson v. City of Wichita, No. 12-CV-1308-JAR, 2014 WL 2533180, at

VOL. 57 COURT OF APPEALS OF KANSAS 713

Estate of Randolph v. City of Wichita

*7-8 (D. Kan. 2014) (unpublished opinion); Price v. City of Wich- ita, No. 12-1432-CM, 2013 WL 6081103, at *4 (D. Kan. 2013) (unpublished opinion). But the Kansas appellate courts have never directly addressed the point. See Tichenor v. City of Topeka, No. 106,384, 2012 WL 3136219, at *5-6 (Kan. App. 2012) (unpublished opinion) (court affirms jury verdict for City on negligent use of force claim without considering whether Kansas actually recognizes such a tort); Grauerholz v. Adcock, 51 Fed. Appx. 298, 301 n.3 (10th Cir. 2002) (unpublished opinion) (court declines to determine whether Kansas has recognized or would recognize claim for negligent use of force); Richard, 2016 WL 5341756, at *8 (noting "the law is somewhat unclear"). Although Dauffenbach v. City of Wichita, 233 Kan. 1028, 667 P.2d 380 (1983), was decided under pre-KTCA law, the case lends support for the claim. Without any real discussion, the court allowed the plaintiff to proceed on a negligence theory when a police officer used a martial arts throw to arrest him for a misdemeanor—resulting in catastrophic, if unanticipated, injuries. The KTCA would not undercut the claim as a matter of law. But if the claim were otherwise recognized, the factual circumstances of a given case could trigger one or more immunities in K.S.A. 75-6104. Snyder argues that negligent use of force claims are categori- cally "disguised" battery claims and should be treated that way. He says plaintiffs often unsheathe negligence theories because they have failed to file their damage actions until after the one- year statute of limitations for civil battery has run. See K.S.A. 60- 514(b). That's not true here; the plaintiffs timely filed their battery claims. Snyder has cited no authority supporting the ironclad rule he describes. Courts in other jurisdictions have carefully studied the interplay between negligent use of force claims and civil battery claims. See Ryan v. Napier, 245 Ariz. 54, 59-62, 425 P.3d 230 (2018); District of Columbia v. Chinn, 839 A.2d 701, 710-12 (D.C. 2003). The Chenn court drew a distinction between claims for battery, as an intentional tort, and for negligence arising from the same incident. If the plaintiff alleges harm resulting from a law enforcement officer's intentional application of the force, the claim is for battery, and liability turns on whether the action was

714 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita privileged. Conversely, a negligence claim might lie should an officer breach a recognized standard of care or misperceive a critical fact before determining to use force against the plaintiff. 839 A.2d at 710-11. The Arizona Supreme Court more recently took a similar view in Ryan, holding a plaintiff "cannot assert a negligence claim based solely on an officer's intentional use of physical force." 245 Ariz. at 57. The court, however, recognized a plaintiff could pursue a negligence claim based on officer conduct "independent of the intentional use of force" or could plead battery and negligence in the alternative if differing factual accounts of the material events supported one or the other. 245 Ariz. at 62. Those approaches don't entirely mesh with the suggestion of negligent use of force wafting through Dauffenbach. And statutes, necessarily unique to a particular jurisdiction, create some of the legal duties imposed on law enforcement officers, thereby shaping the application of negligence principles. But those cases are instructive in the absence of more focused authority from the Kansas appellate courts. We, therefore, presume in some circumstances a person might be able to bring a negligence claim under Kansas law arising out of an incident involving a law enforcement officer's physical contact with that person, resulting in an injury. By the same token, we do not intend to define the contours of those circumstances in this case. Snyder's use of force, particularly the fatal shooting of Ran- dolph, virtually defines a civil battery if not otherwise privileged. Snyder deliberately fired four shots at Randolph's torso—an intentional application of deadly force. The shooting was not the product of negligence or carelessness, and Snyder understood the likely consequence of his conduct was a grave or fatal injury to Randolph. Liability, therefore, turns on Snyder's entitlement to a self-defense privilege. The shooting was either a privileged use of force or it was an actionable battery. The same analysis and result controls Snyder's use of the Taser whether the estate treats it as a distinct claim for negligent use of force or as a component of a single claim combined with the shooting. In short, a claim for negligent use of force does not lie based on any version of the immediate encounter as Randolph emerged

VOL. 57 COURT OF APPEALS OF KANSAS 715

Estate of Randolph v. City of Wichita from his house and began to move across the front yard. The district court, therefore, reached the correct result in granting summary judgment on the estate's claim for the negligent use of force. The estate has brought what it characterizes as a wrongful death claim as if it were a distinct legal basis for imposing liability on the defendants. We see the claim more properly treated as con- flating the procedural mechanisms for recovering damages based on otherwise actionable injuries done to Randolph that survive his death and for damages his heirs and estate may recover if his death resulted from a third party's wrongful conduct. See K.S.A. 60-1801 (recognizing claims for personal injury survive death of victim); K.S.A. 2018 Supp. 60-1901(a) (recognizing wrongful death claim); K.S.A. 60-1902 (claim for damages to heirs). Be- cause we have found disputed issues of material fact precluding summary judgment for Snyder on the estate's claim for a civil battery causing Randolph's death, any damages for injuries surviving Randolph's death and for harm to his heirs as a result of his death remain in play. We have found the district court otherwise properly granted summary judgment on the claims against Brown. He cannot be kept in the case on this claim, since it requires an independent ground of liability. On summary judgment, the parties have not addressed what, if any, damages for injuries to Ran- dolph survived his death or the damages that might be due his heirs. We do not delve into those issues. Nor do we concern our- selves with real-party-in-interest questions, since both Randolph's estate and a representative of his heirs are plaintiffs. See K.S.A. 60-1902 (heir may bring wrongful death action).

Family Members' Claims Based on Conduct After Randolph Leaves House

Alford-Allen has lodged a civil assault claim against Snyder because he pointed his pistol at her when she approached Ran- dolph as he lay on the ground after the shooting. Snyder ordered her back, and she complied. For summary judgment purposes, the parties do not dispute that Snyder's conduct satisfied the elements of an assault: pointing the weapon at Alford-Allen entailed a threat of bodily harm coupled with the ability to carry out the threat, re-

716 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita sulting in her immediate apprehension of such harm. The controlling question is whether Snyder's action was privileged and, thus, presents an issue comparable to the estate's claim for battery based on the shooting. The undisputed facts do not include any explanation from Snyder about why he pointed his pistol at Alford-Allen. A reasonable inference might be that Snyder anticipated an emotionally distraught mother might pick up the knife next to her son's body and menace him or Brown with it. But that simply would be one among many inferences. On summary judgment, we may not draw inferences favoring the moving party, particularly on issues on which that party would bear the burden of proof at trial. So we cannot conclude Snyder's action amounted to privileged self-defense. On appeal, Snyder submits that summary judgment was appropriate because an objectively reasonable officer would have acted in self-defense under the circumstances. As we have already explained, objective reasonableness alone is an adequate ground to turn aside a § 1983 claim based on an ostensible violation of the Fourth Amendment. But objective reasonableness is not a sufficient condition to defeat a claim based on a common-law intentional tort; it must be combined with a subjective intent to act in self-defense to establish a lawful privilege. The record is devoid of evidence of Snyder's subjective intent. Snyder also submits his decision to point his pistol at Alford- Allen should be accorded discretionary function immunity under K.S.A. 75-6104(e). But that defense also fails on the summary judgment record, since Snyder has not shown his intentional—and otherwise tortious—conduct directed at Alford-Allen was privileged. A law enforcement officer is not shielded by discretionary function immunity for committing an intentional tort, such as assault or battery. The district court erred in entering summary judgment for Snyder on Alford-Allen's assault claim. The family members, including Alford-Allen, present at Ran- dolph's home at the time of the shooting have collectively pursued various claims that we now take up. The family members say Snyder committed an assault against each of them when he drew and deployed his Taser and then drew

VOL. 57 COURT OF APPEALS OF KANSAS 717

Estate of Randolph v. City of Wichita and fired his pistol at Randolph. At the outset, all of those claims depend upon transferred intent or liability in the sense that Snyder did not direct his actions at or particularly intend to affect anyone other than Randolph. The law governing intentional torts incorporates that sort of transference so that a person intending to commit an assault or battery against one individual may be liable if he or she actually causes actionable harm to someone other than the intended victim. Baska, 283 Kan. at 757-78 (recognizing that transferred intent applies to intentional torts of assault and battery); Al- teiri v. Colasso, 168 Conn. 329, 334-35, 362 A.2d 798 (1975) (acknowledging transferred intent applicable to civil assault); Hens- ley v. Suttles, 167 F. Supp. 3d 753, 764 (W.D. N.C. 2016) (under North Carolina law, transferred intent applies to civil assaults); Restatement (Third) of Torts: Intentional Torts to Persons § 110(a) (Tentative Draft No. 1) (2015) ("For purposes of liability for . . . assault . . . the intent requirement for the tort is satisfied if the actor intends to cause that relevant tortious consequence to a third party, rather than to the plaintiff, but the actor's conduct causes that consequence to the plaintiff."). With those principles in mind, we look at Snyder's use of the Taser as a separate act from his brandishing and firing of the pistol, although they occurred in rapid succession. The Taser is designed to be nonlethal, as we have noted, and we presume it is commonly viewed as a comparatively benign alternative to the deadly force of firearms. A person, nonetheless, could commit a civil assault by pointing a Taser at someone, since the device de- livers a temporarily debilitating electric shock—more than sufficient bodily harm to support the tort. But a Taser has a range limited by the length of the electrical wires used to deliver the shock. None of the family members, therefore, could have been placed in realistic apprehension of personal harm from Snyder's display or use of the Taser. Moreover, he discharged the Taser once at Ran- dolph and immediately discarded it, negating the possibility of some further assault. Snyder's use of the pistol, however, is a different matter. A firearm is a deadly weapon, and even a handgun has sufficient range to endanger bystanders at some distance. So displaying a handgun coupled with an apparent ability or willingness to use it

718 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita supports a civil assault of those persons at whom the display has been directed, so long as they perceive those circumstances. Given the nature of the weapon, other persons in what might be characterized as a zone of threat or danger similarly may be placed in immediate apprehension of harm. The individual with the handgun might fire indiscriminately or with less than fine aim. Or he or she might intend to shoot multiple victims. Those possibilities necessarily tend to create an apprehension of harm in persons other than the specific target at whom the handgun has been pointed. The facts, as presented on summary judgment, placed all of the family members in that zone when Snyder drew his pistol, pointed it at Randolph, and began shooting. We recognize that Snyder's actions in doing so took just seconds. But an actionable civil assault does not require any particular or prolonged duration of either the apparent threat or the apprehension of harm. We again come to the issue of privilege. If Snyder's use of the firearm were privileged self-defense, that would absolve him of liability not only to Randolph but to anyone claiming through a transferred intent theory. In other words, the privilege insulates the intentional conduct and, thus, precludes liability as to any potential victim of what would otherwise be a civil assault. Because disputed material facts preclude a finding as a matter of law that Snyder acted in self-defense, the district court erred in granting summary judgment on the family members' assault claims based on the shooting of Randolph. The family members next contend Snyder may be held accountable for the intentional infliction of emotional distress on them as a result of his conduct, principally the shooting of Ran- dolph. A claim for the intentional infliction of emotional distress or the tort of outrage requires: (1) the defendant act intentionally or in reckless disregard of the plaintiff; (2) the actions must be "extreme and outrageous"; (3) the plaintiff has to experience "extreme and severe" mental distress; and (4) the plaintiff's mental distress has to be causally connected to the defendant's actions. Valadez v. Emmis Communications, 290 Kan. 472, Syl. ¶ 1, 229 P.3d 389 (2010). On summary judgment, Snyder has challenged the claim only on the ground his conduct was not extreme and

VOL. 57 COURT OF APPEALS OF KANSAS 719

Estate of Randolph v. City of Wichita outrageous. So we consider only that element. Based on our review of the evidence and the law thus far, we may quickly dispose of the point. The wrongdoer need not intend to cause the victim emotional distress. Rather, the tort requires that the intentional conduct so far exceed societal norms that it may be fairly characterized as exceptionally vile or reprehensible or utterly intolerable. Nearly 45 years ago, the Kansas Supreme Court borrowed a colorful caliper that asks whether the facts would cause "'an average member of the community'" to recoil in resentment at the defendant's conduct and "'exclaim, "Outrageous!"'" Dotson v. McLaughlin, 216 Kan. 201, 210, 531 P.2d 1 (1975) (quoting Restatement [Second] of Torts § 46, comment d [1965]). That measure of the tort endures. See Strano v. Azzinaro, 188 Conn. App. 183, 188, 204 A.3d 705 (2019); F.B.C. v. MDwise, Inc., 122 N.E.3d 834, 837 (Ind. App. 2019); McIlrath v. City of Kingman, No. 109,837, 2014 WL 1887652, at *5 (Kan. App. 2014) (unpublished opinion). Given the disputed issues of material fact, we must assume Snyder did not act in privileged self-defense when he shot Ran- dolph. And that assumption guides our consideration of the plaintiffs' claim for the intentional infliction of emotional distress. We need not burden our determination with an extended description of the circumstances. The intentional and unprivileged action of a law enforcement officer in firing four shots into a person's chest in full view of that person's family members would satisfy any acceptable definition of extreme and outrageous. In that respect, we don't have to say any more. The district court erred in granting summary judgment on this claim. We need not and do not extract and examine individually other aspects of Snyder's conduct to determine if each alone might be considered extreme or outrageous. Nor do we specifically assess the cumulative impact of his conduct, although the shooting should not be untethered from everything else that happened at Randolph's home on July 4th. Nothing in those events would ap- preciably mitigate the shooting if it were otherwise unprivileged and, thus, a battery. Finally, the family members contend Snyder negligently caused them emotional distress through his actions, particularly,

720 COURT OF APPEALS OF KANSAS VOL. 57

Estate of Randolph v. City of Wichita of course, the shooting of Randolph. The Kansas Supreme Court has permitted individuals to recover emotional distress damages on a negligence theory only if they have also suffered near contemporaneous physical harm distinct from common physical symptoms of the claimed emotional distress, such as insomnia or hypervigilance. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, Syl. ¶ 1, 662 P.2d 1214 (1983); Majors v. Hillebrand, 51 Kan. App. 2d 625, 628, 349 P.3d 1283 (2015) (recognizing continued viability of physical injury limitation on claims for negligent infliction of emotional distress). In explaining the nature of the claim, the Hoard court cited Whitsel v. Watts, 98 Kan. 508, 159 P. 401 (1916), as a situation in which damages would be permitted: The defendant made "angry threats" to a pregnant woman who retreated into her house, collapsed, and miscarried several hours later. Hoard, 233 Kan. at 276. Plaintiffs have not offered evidence of that kind of near contemporaneous physical harm to support their claims. The district court properly granted summary judgment on the claims for negligent infliction of emotional distress.[4]

[4]In Hoard, the court mentioned an exception to the physical injury rule when the defendant's conduct is "willful or wanton" or undertaken "with intent to injure." 233 Kan. at 274. The exception, however, does not expand the tort of negligent infliction of emotional distress. Rather, it suggests intentional infliction of emotional distress as the legally appropriate claim, consistent with the court's citation to Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983). The cited passage of Lantz specifically refers to the intentional infliction of emotional distress, which requires no physical injury. 232 Kan. at 500.

City of Wichita's Liability

The City has not asserted any theories of defense independent of those Brown and Snyder have presented. Since the City's liability is based on its status as the employer of the officers and no one has suggested the officers acted outside the scope and course of their duties, the City remains a defendant on those claims we

VOL. 57 COURT OF APPEALS OF KANSAS 721

Estate of Randolph v. City of Wichita have found the district court improperly dismissed on summary judgment.

Conclusion

Having thoroughly reviewed the summary judgment submis- sions to the district court, the district court's journal entry, and the arguments of the parties on appeal, we affirm the district court in part, reverse in part, and remand for further proceedings.

We affirm summary judgment on: The plaintiffs' claims against Brown; The plaintiffs' negligence claims against Snyder based on his conduct until the time Randolph left the house; The estate's claims for assault against Snyder based on his display of the Taser and the pistol at Randolph; The estate's claims against Snyder for the negligent use of force; The family members' claims against Snyder for assault based on his use of the Taser; and The family members' claims against Snyder for the negligent infliction of emotional distress for the death of Randolph. We reverse summary judgment and remand for further proceedings on: The estate's claim against Snyder for battery based on his use of the Taser against Randolph; The estate's claim against Snyder for battery based on his shooting of Randolph, including what has been denominated as the wrongful death claim that appears to include both survival claims of Randolph and claims of Randolph's heirs as a result of his death; Alford-Allen's claim of assault against Snyder for pointing his pistol at her as she approached Randolph after the shooting; The family members' claims for assault against Snyder based on his use of the pistol; and The family members' claims against Snyder for the intentional infliction of emotional distress based on the death of Randolph.

Affirmed in part, reversed in part, and remanded for further proceedings.

VOL. 57 COURT OF APPEALS OF KANSAS 723

In re Tax Appeal of Southwestern Bell Tel. Co.

___

No. 120,167

In the Matter of the Appeal of SOUTHWESTERN BELL TELEPHONE CO., L.L.C., from an Order of the Division of Taxation on Assessment of Kansas Retailers' Sales Tax.

___

SYLLABUS BY THE COURT

1. STATUTES—Interpretation—Administrative Agency Interpretation of Statute— Appellate Review. Kansas courts give no deference to administrative agencies' interpretation of statutory language. Instead, the interpretation of a statute is a legal question over which courts' review is unlimited.

2. SAME—Interpretation—Legislature's Intent—Appellate Review. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the statute. Courts therefore do not add or delete statutory requirements, and courts give ordinary words their ordinary meanings.

3. LEGISLATURE—Public Policy Questions Determined by Legislature. Questions of public policy are for legislative and not judicial determination, and where the legislature declares a policy, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts.

4. TAXATION—Electricity to Power HVAC Units in This Case Exempt from Sales Tax under Statute. The dedicated HVAC units at issue make it possible for the appellee telecommunications company's transmission and switching equipment to provide a continuous signal. The electricity used to power these dedicated HVAC units is "essential or necessary to" and "used in the actual process of" providing telecommunication services under K.S.A. 2018 Supp. 79-3602(dd)(2) and is therefore exempt from sales tax under K.S.A. 2018 Supp. 79-3606(n).

Appeal from Board of Tax Appeals. Opinion filed January 24, 2020. Af- firmed.

Nathan D. Hoeppner, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

W. Robert Alderson, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka, for appellee.

Before MALONE, P.J., STANDRIDGE and WARNER, JJ.

724 COURT OF APPEALS OF KANSAS VOL. 57

In re Tax Appeal of Southwestern Bell Tel. Co.

WARNER, J.: Southwestern Bell provides telecommunication services by operating transmission and switching equipment to produce a communication signal. If this equipment overheats, it will stop transmitting signals. To prevent transmission loss, Southwestern Bell has installed dedicated HVAC units to maintain a constant temperature in areas where the transmission and switching equipment operates, allowing the equipment to operate continuously. Kansas tax statutes allow companies like Southwestern Bell an exemption from sales tax on electricity essential to and actually used in providing telecommunication services. The question before us is whether the electricity used to power these dedicated HVAC units meets these statutory criteria. We conclude it does, and therefore affirm the Board of Tax Appeals' ruling refunding the sales tax Southwestern Bell paid on electricity to power the system's HVAC units.

FACTUAL BACKGROUND

Southwestern Bell operates transmission and switching equipment to create telecommunication signals. This equipment runs continuously, generating significant heat. At the same time, excessive heat renders the equipment inoperable, resulting in a complete system failure in as little as two hours. To avoid system failure, Southwestern Bell must regulate the temperature, humidity, and air quality in areas where the equipment is installed—ensuring the temperature does not deviate 4 degrees from the ideal temperature, the humidity does not deviate more than 40% from the ideal humidity level, and the air quality remains satisfactory. Southwestern Bell has taken several steps to ensure this equipment remains operational. The equipment is kept in self-contained areas where employees do not work. Lights remain off to reduce heat, the air is recirculated to maintain air quality, and sensors alert employees if the temperature or humidity rises above maximum levels. These areas also contain dedicated heating, ventilation, and air conditioning (HVAC) units. Ductwork is positioned over the equipment to directly cool it. Kansas tax statutes exempt from sales tax electricity "that is consumed in" providing telecommunication services. See K.S.A.

VOL. 57 COURT OF APPEALS OF KANSAS 725

In re Tax Appeal of Southwestern Bell Tel. Co.

2018 Supp. 79-3606(n). Southwestern Bell sought $1,059,266 in tax refunds under this statute for the sales tax it paid on electricity purchased from December 2012 to March 2016 to power its transmission equipment and dedicated HVAC units. The Kansas De- partment of Revenue approved the sales tax refund for the electricity used to power the equipment but denied the $376,037 request relating to the HVAC units. The Department found the HVAC units merely maintained the switching and transmission equipment, and the Department's regulations distinguished maintenance functions from essential functions giving rise to the sales-tax exemption. The Office of Administrative Appeals upheld the Department's denial. The Kansas Board of Tax Appeals disagreed, finding the electricity powering the dedicated HVAC units was "'essential or necessary' and . . . 'used in the actual process of and consumed' in the providing of services as contemplated by K.S.A. 78-3602(dd)." In particular, BOTA observed that without the dedicated HVAC units, Southwestern Bell would not be able to continuously trans- mit telecommunication signals:

"The electricity at issue is essential and necessary to the process of providing telecommunication services. The HVAC system it powers does more than maintain the switching and transmission equipment. Without the heat, humidity, and dust control provided by the HVAC system engineered to operate in the self- contained area where the switching and transmission equipment is located, the equipment would fail and signal transmission would cease."

BOTA therefore reversed the Department's decision regarding the sales-tax exemption on the electricity used to power the dedicated HVAC units and granted Southwestern Bell's requested sales-tax refund of $376,037, plus interest. The Department appeals.

DISCUSSION

K.S.A. 2018 Supp. 79-3606(n) exempts from taxation "all sales of tangible personal property that is consumed in . . . the providing of services . . . for ultimate sale at retail within or without the state of Kansas." Kansas tax statutes define "[p]roperty which is consumed" as "tangible personal property which is essential or necessary to and which is used in the actual process of

726 COURT OF APPEALS OF KANSAS VOL. 57

In re Tax Appeal of Southwestern Bell Tel. Co. and consumed, depleted or dissipated within one year in . . . the providing of services . . . and which is not reusable for such purpose." K.S.A. 2018 Supp. 79-3602(dd)(2). See also K.A.R. 92-19- 53(c) (interpreting "used in the actual process" as meaning something "integral and essential to the production or processing activity" that "occur[s] at the location where the production or processing activity is carried on" and "during the production activity"). The central question before us is one of statutory interpretation—whether electricity consumed by Southwestern Bell's dedicated HVAC units constitutes "property that is consumed in . . . the providing of services" under K.S.A. 2018 Supp. 79-3606(n) and thus is exempt from sales tax. There is no question that electricity is "tangible personal property" within the meaning of these provisions. K.S.A. 2018 Supp. 79-3602(pp). Nor is there a dispute that electricity is "consumed," in that it is used to power South- western Bell's equipment (whether transmission and switching equipment or HVAC units) and is not reusable. See K.S.A. 2018 Supp. 79-3602(dd)(B). Instead, the parties dispute the function of the temperature-controlling units—whether the dedicated HVAC units are part and parcel of providing Southwestern Bell's telecommunication services or distinct operations that merely maintain the transmission and switching equipment. As a starting point, we note that although BOTA and the De- partment have interpreted K.S.A. 2018 Supp. 79-3606(n) differently, we are not bound by either of these diverging interpretations. Kansas courts give no deference to administrative agencies' interpretation of statutory language. See Douglas v. Ad Astra In- formation Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (no deference given to agencies' interpretation of statutes); see also May v. Cline, 304 Kan. 671, 675, 372 P.3d 1242 (2016) (no deference given to agencies' interpretation of their own regulations). Rather, the interpretation of a statute is a legal question over which our review is unlimited. In re Tax Appeals of Genesis Health Clubs, 42 Kan. App. 2d 239, 242, 210 P.3d 663 (2009), rev. denied 290 Kan. 1094 (2010). The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the

VOL. 57 COURT OF APPEALS OF KANSAS 727

In re Tax Appeal of Southwestern Bell Tel. Co. statute. State v. Spencer Gifts, 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). We therefore do not add or ignore statutory requirements, and we give ordinary words their ordinary meanings. See 304 Kan. 755, Syl. ¶ 3; Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). The Department argues the electricity used to power South- western Bell's dedicated HVAC units is neither "essential or necessary to" nor "used in the actual process of" operating the company's transmission and switching equipment. But while the De- partment presents these as separate points on appeal, both turn on arguments relating to the equipment's operation. The Department contends the electricity is taxable because the HVAC units are distinct and separate from the equipment creating the telecommunication signals. The Department points out that these machines run on different types of electrical current: The HVAC units use AC power, while the electricity must be converted to DC power to run the transmission and switching equipment. Southwestern Bell argues—and BOTA found—that the electricity powering the HVAC units is essential to the transmission and switching equipment's function because the equipment would be inoperable without those units. Although the HVAC units and the transmission and switching equipment are different apparatuses, they form a system that makes Southwestern Bell's telecommunication services possible. The fact that the units and equipment use different types of current is irrelevant to our interpretation of the statute, which makes no mention of the type of electric current employed; even the Depart- ment's own regulations recognize that the sales-tax exemption turns on "how the [electricity] is used in the production or processing activity," not whether it runs on AC power, DC power, or both. See K.A.R. 92-19-53(a)(5). Without the HVAC units' climate-controlling function, the transmission and switching equipment can operate only two hours before failing, making it impossible to generate a continuous and reliable telecommunication signal. The equipment depends on the units to produce an uninterrupted signal. In other words, under the plain language of K.S.A. 2018 Supp. 79-3602(dd)(2), the electricity used to power these

728 COURT OF APPEALS OF KANSAS VOL. 57

In re Tax Appeal of Southwestern Bell Tel. Co. dedicated units is "essential or necessary to" and "used in the actual process of" providing Southwestern Bell's telecommunication services. Thus, this electricity is exempt from sales tax under K.S.A. 2018 Supp. 79-3606(n). The Department argues that this interpretation is contrary to the conclusions reached by this court in Genesis Health Clubs and the Kansas Supreme Court in Warren v. Fink, 146 Kan. 716, 717- 18, 72 P.2d 968 (1937). We disagree. In Genesis, we denied a health club's exemption request under K.S.A. 79-3606(n) for electricity, water, and gas purchased to power the lights, HVAC units, and exercise equipment in its gyms. 42 Kan. App. 2d at 240-41. The Genesis court relied on two subsections of a regulation; the first denied an exemption for electricity used to heat, cool, or light a building in which recreational activities occur, while the second permitted an exemption for electricity which powers recreational machines that "'directly inter- act[] with the person who pays for the time-limited, interactive service.'" 42 Kan. App. 2d at 243-44 (first citing K.A.R. 92-19- 22b[d][1]; then quoting K.A.R. 92-19-22b[d][2]). Relying on a prior case, the court noted that "purchases of property such as electricity are not consumed in the purchaser's business if that property merely serves to create the environment for the business activity rather than to become a part of the product or service itself." 42 Kan. App. 2d 239, Syl. ¶ 5. In Warren, a grocer sought an exemption for electricity used to power a refrigerator that stored perishable goods. At the time, the Kansas tax statutes exempted from sales tax electricity used in "'processing'" a service or commodity. 146 Kan. at 718 (quoting L. 1937, ch. 374, § 2[i], [l]). The Warren court rejected the grocer's argument that he was a processor, emphasizing that the food stored in the refrigerator remained "in substantially the same condition" until it was sold to customers. 146 Kan. at 718. Since the electricity did not contribute to making a new product (such as turning milk into ice cream), the grocer never resold the electricity; he used it in his business "just as he might consume electric energy for lights in his store." 146 Kan. at 718.

VOL. 57 COURT OF APPEALS OF KANSAS 729

In re Tax Appeal of Southwestern Bell Tel. Co.

These cases are distinguishable. Unlike the grocer in Warren, there is no question that Southwestern Bell produces telecommunication services. The question before us is whether the electricity used to power the dedicated HVAC units is "essential or necessary to" and "used in the actual process of" providing those services. K.S.A. 2018 Supp. 79-3602(dd)(2). And unlike the health clubs in Genesis, which were seeking exemptions for electricity used to power their entire gyms—lights, sales offices, locker rooms, and fitness equipment—the sole purpose of Southwestern Bell's dedicated HVAC units is to provide a climate-controlled environment where the transmission and switching equipment can continuously operate. Finally, the Department argues that Kansas tax policy requires the ultimate consumer to pay the sales tax exempted to the provider, and the charges for the electricity to power the HVAC units are not passed along to the consumer. But this argument is belied by the Kansas Supreme Court's decision in In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 246-47, 250-51, 891 P.2d 422 (1995) (holding electricity used by a grain elevator in blend- ing, cleaning, drying, and aerating grain was exempt from sales tax because the electricity improved the grain quality—a benefit passed to the consumer). And the Department's policy argument contradicts the plain language of Kansas tax statutes, which specifically recognize electricity as "tangible personal property" that may be exempted under K.S.A. 2018 Supp. 79-3606(n). See K.S.A. 2018 Supp. 79-3602(pp). If the Department believes that this classification should be amended, it must present its rationale to the legislature, not the courts. Accord Spencer Gifts, 304 Kan. 755, Syl. ¶ 4 ("Questions of public policy are for legislative and not judicial determination, and where the legislature declares a policy, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of the legislation is for that body and not for the courts."). To provide telecommunication services, Southwestern Bell operates transmission and switching equipment to generate a signal. To ensure the signal is available continuously, Southwestern Bell must regulate the equipment's temperature through the HVAC units at issue. Without this system—the transmission and

730 COURT OF APPEALS OF KANSAS VOL. 57

In re Tax Appeal of Southwestern Bell Tel. Co. switching equipment and the dedicated HVAC units, working together—the signal would terminate; the system is essential and necessary to providing uninterrupted service. The electricity powering that system—including the dedicated HVAC units—is used in the actual process of providing Southwestern Bell's telecommunication services. See K.S.A. 2018 Supp. 79-3602(dd)(2). BOTA correctly found this electricity to be exempted from sales tax under K.S.A. 2018 Supp. 79-3606(n).

Affirmed.

VOL. 57 COURT OF APPEALS OF KANSAS 731

State v. McKenna

___

No. 119,431

STATE OF KANSAS, Appellee, v. TIA RENEE MCKENNA, Appellant.

___

SYLLABUS BY THE COURT

1. POLICE AND SHERIFFS—Public Safety Stop—Scope. An officer does not exceed the scope of a public safety stop, under the circumstances of this case, by asking for a person's name, getting a verbal response, and checking that name locally for warrants.

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 31, 2020. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.

GARDNER, J.: After the State charged Tia McKenna with possession of methamphetamine and possession of a stimulant, McKenna moved to suppress evidence of the drugs. She argued that the arresting officer unconstitutionally detained her without reasonable suspicion that she was committing a crime. The district court disagreed, finding that the officer conducted a valid public safety stop. It denied the suppression motion and then found McKenna guilty as charged. McKenna appeals only the district court's denial of her suppression motion. We find that the officer's contact with McKenna was a valid public safety stop and did not exceed its bounds; thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2017, around 2 a.m., Officer Daniel Styles of the Hutchinson Police Department was driving his police vehicle on patrol. In a residential neighborhood, he came upon a car legally parked on a dark street with its dome light on. The vehicle's driver- side window was down, and a woman, McKenna, was sitting in

732 COURT OF APPEALS OF KANSAS VOL. 57

State v. McKenna the driver's seat with her face tilted away from the street. She appeared to be asleep or unconscious. Styles shined his spotlight on the driver but she did not respond. By the way she was slumped over, Styles suspected that she was intoxicated so he turned his patrol car around and parked behind her car. He activated his rear emergency lights—which can be seen only from behind his patrol car—but used his front headlights to illuminate her car. Styles walked up to the driver's door, stood outside its open window, shined his flashlight into the car, knocked on its roof, and called the woman to rouse her. After a while, she began to wake up. Styles identified himself as an officer, asked if the driver knew where she was, and asked her name. She did not answer clearly. Styles also asked if she had any identification or if she had been drinking. When the driver continued to be unresponsive, Styles reached through the open window and nudged her arm, saying "come on, I need you to get up now." When she stirred, Styles again asked what her name was, where she stayed, and whether she knew where she was. The driver, after much prompting, responded that her name was Tia McKenna. Styles asked her these questions because he was concerned for her well-being and, if she were intoxicated, wanted to give her a ride home rather than allow her to drive. After learning her name, Styles asked dispatch to "check the in-house" for a Tia McKenna. Two minutes later, dispatch informed him that McKenna had an outstanding warrant for her arrest. Styles then arrested McKenna based on that warrant. Styles took McKenna to the county jail. During intake, law enforcement found a bag containing methamphetamine and a bag containing Alprazolam, commonly known as Xanax, in McKen- na's bra. After the State charged McKenna with possession of methamphetamine and possession of a stimulant, she moved to suppress the evidence. Styles was the sole witness at the hearing, and the State admitted the video and audiotape he had made of his encounter with McKenna. The district court denied McKenna's motion, finding Styles was acting in a community caretaking function and

VOL. 57 COURT OF APPEALS OF KANSAS 733

State v. McKenna did nothing wrong. After a bench trial on stipulated facts, the district court convicted McKenna as charged. The district court sentenced McKenna to a 20-month prison sentence and granted her probation. McKenna timely appeals.

DID THE DISTRICT COURT ERR BY DENYING MCKENNA'S MOTION TO SUPPRESS EVIDENCE?

McKenna argues the district court should have granted her motion to suppress because Styles violated her Fourth Amendment rights against unreasonable seizure. She argues that (1) Styles seized her under the meaning of the Fourth Amendment to the United States Con- stitution, (2) he did not have reasonable suspicion of criminal activity to initiate this seizure, and (3) the attenuation doctrine should not apply. See Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 2062, 195 L. Ed. 2d 400 (2016) (holding that officer's discovery of valid, preexisting arrest warrant attenuated connection between unlawful investigatory stop and drug-related evidence seized from defendant during search incident to arrest). In response, the State argues that Styles' contact with McKenna was justified as a welfare check, but if Styles unconstitutionally seized McKenna, the attenuation doctrine applies. McKenna filed no reply brief. But during oral argument, counsel for McKenna argued that any public safety stop exceeded its lawful scope when the officer asked for McKenna's name and ran a warrants check. We invited the parties to address that issue if they desired, and they have. We consider their supplemental filings, as well as the oral arguments by counsel, because they expound upon issues previously briefed.

Standard of Review

When the material facts supporting a district court's decision on a motion to suppress evidence are undisputed, as here, the ultimate question whether to suppress is a question of law over which we have unlimited review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

734 COURT OF APPEALS OF KANSAS VOL. 57

State v. McKenna

Analysis

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Four- teenth Amendment incorporates these provisions to the states. See Mapp v. Ohio, 367 U.S. 643, 655-60, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amend- ment." State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). "The ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). Kansas courts have recognized four types of police-citizen encounters: (1) voluntary encounters, (2) investigatory detentions, (3) public safety stops, and (4) arrests. State v. Phillips, 49 Kan. App. 2d 775, 783, 315 P.3d 887 (2014). The encounter at issue here is the public safety stop, or welfare check. Generally, to properly detain an individual in a public place for an investigatory detention—i.e., a Terry stop—an officer must have a reasonable suspicion that a person is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). But the State does not contend that the officer reasonably suspected McKenna of a crime. Instead, the State relies on the public safety rationale, first enunciated by the United States Supreme Court in Cady, and recognized by the Kansas Supreme Court in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), disapproved in part on other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). That doctrine is based on the idea that the role of police is not limited to the detection, investigation, and prevention of criminal activity. Rather, police officers engage in many activities that ensure people's safety and welfare. Requiring reasonable suspicion of criminal activity before police can investigate and give aid in these situations would hamstring their ability to protect and serve the public.

VOL. 57 COURT OF APPEALS OF KANSAS 735

State v. McKenna

The district court found that the encounter between McKenna and Styles was a valid public safety stop. A public safety stop "does not require the police to have reasonable suspicion of a civil or criminal infraction." State v. Messner, 55 Kan. App. 2d 630, Syl. ¶ 1, 419 P.3d 642 (2018). However, a safety stop must be "'"divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute."'" 55 Kan. App. 2d at 631. "[A]s with any other police encounter, the scope of the detention during a public safety stop cannot exceed the jus- tifications for the stop." State v. Gonzales, 36 Kan. App. 2d 446, 455, 141 P.3d 501 (2006). In applying the public safety rationale to justify a police-citizen encounter, courts carefully scrutinize the facts "so the protections of the Fourth Amendment are not emas- culated." 36 Kan. App. 2d at 455. The Gonzales court adopted a three-part test to determine the legality of a public safety stop. First, as long as there are objective, specific, and articulable facts from which a law enforcement officer would suspect that a citizen needs help or is in peril, the officer has the right to stop and investigate. Second, if the citizen needs aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment. 36 Kan. App. 2d at 456. We use that test here. See State v. Morales, 52 Kan. App. 2d 179, 182-83, 363 P.3d 1133 (2015). First, the record contains objective, specific, and articulable facts from which a law enforcement officer would have suspected that McKenna needed help. She was slumped over in a car, with her window rolled down and the car's dome light on, at 2 a.m. in a high drug trafficking area. And when the officer shined a spotlight at McKenna, she did not respond in any way. These are the factors Styles noted which made him concerned that McKenna either needed medical attention or was intoxicated and may try to drive while impaired, endangering herself and the public. These facts justified his initial investigation, as McKenna seems to concede. See Nickelson v. Kansas Dep’t. of Revenue, 33 Kan. App. 2d 359, 365, 102 P.3d 490 (2004) (holding the public safety stop

736 COURT OF APPEALS OF KANSAS VOL. 57

State v. McKenna was valid where officer checked on a vehicle that had pulled into "the middle of nowhere"); see also Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007) (holding officer's initial interaction with sleeping passenger was valid under the community caretaking function, using same test as Kansas). Second, McKenna appeared to need aid. She was apparently unconscious. She did not respond when Styles shined a spotlight at her, did not rouse when he knocked on her car's roof, and did not answer or stir when he asked about her. Because she appeared to be unconscious, a reasonable, objective person would believe that intervention was necessary. When she did respond to Styles, she showed signs of intoxication or another medical issue because she did not speak coherently. See State v. Selders, No. 94,983, 2006 WL 2265163, at *1-2 (Kan. App. 2006) (unpublished opinion) (holding that officer's approaching a vehicle with a slumped over driver, his waking of the driver, and his request for the driver to exit the vehicle to make sure he was okay was a lawful public safety stop). Third, Styles was never assured that McKenna was not in peril or was no longer in need of assistance. Her lack of coherence continued in varying degrees throughout the encounter, as the video convincingly shows. Her eyes repeatedly shut, her head continu- ally slumped forward and back, she was often completely unresponsive to the officer's questions, and when she did respond her speech was either slurred or unintelligible. Nothing that happened before the dispatcher told Styles of the warrant for McKenna's arrest would have dispelled a reasonable officer's lingering concerns that McKenna was either having some medical issue or was intoxicated. In either event, Styles did not think she could drive. These facts contrast to those in State v. Bluthardt, No. 116,401, 2017 WL 948330 (Kan. App. 2017) (unpublished opinion). There, a panel of this court found an initial safety stop valid when an officer learned that two persons appeared to be passed out in a car with the engine running. But the safety stop ended when the officer learned that they did not need help and had simply fallen asleep in the car while waiting for a friend. Yet leaving McKenna alone, given the totality of the circumstances, would seem to invite trouble.

VOL. 57 COURT OF APPEALS OF KANSAS 737

State v. McKenna

Styles testified that his questions—asking for McKenna's identification, asking where she was staying, asking if she had anything to drink, and running her name through the police system— were meant to check on McKenna's welfare. The district court strongly credited his testimony.

"[THE COURT]: Officer Styles I find to be a credible witness. I would have found him not to be doing his job and his duty if you're driving down the street and see a vehicle in that situation with the window open and an individual's head down. He was doing his job and did it properly. That's what he's required to do. "Had he not stopped and someone found a dead body in that vehicle the next day he would have been hung out to dry by the media and everyone, and right- fully so. That person could have been having a diabetic attack, might have had a heart attack. Once he got up to the car clearly there was something wrong with the defendant whether it was alcohol, drugs, whether she was having diabetic problems or any other number of problems that would create that. I, I can find absolutely nothing wrong in what the officer did. I don't even, I do not consider that a close case at all. And quite honestly, would have expected any officer to take the action he did."

The record shows Styles' actions were motivated by a desire to render aid or assistance, rather than to investigate criminal activity. McKenna contends that Styles crossed the line from any caretaking function to an investigatory detention by asking her name and then running a warrants check. In other words, she alleges that the officer's behavior and the scope of the intrusion were not reasonably tailored to the community caretaking need. But our Supreme Court has held that "an officer's mere request for identification or [identifying] information does not, by itself, constitute a seizure." State v. Pollman, 286 Kan. 881, 888, 190 P.3d 234 (2008). This court has repeatedly held that an officer may request identification during a public safety stop. See, e.g., State v. Manwarren, 56 Kan. App. 2d 939, 948-49, 440 P.3d 606 (2019); Messner, 55 Kan. App. 2d at 637. Thus, an officer may walk up to individuals and ask their name and for identification, but the officer cannot force an answer. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991); see State v. Baacke, 261 Kan. 422, 437, 932 P.2d 396 (1997). Styles' request for McKenna's name was not inconsistent with the community caretaking function. Styles did not force McKenna to give him her name. He asked for it—repeatedly, because she

738 COURT OF APPEALS OF KANSAS VOL. 57

State v. McKenna was incoherent—and she eventually answered. But Styles did not demand any documentation to verify McKenna's response as he would have done had he detained her for investigative purposes. So this case turns on whether Styles' request to run a warrants check on McKenna exceeded the scope of the community caretaking function. After Styles got McKenna's name, he asked dispatch to "check the in-house" computer. He learned a couple of minutes later of a warrant for her arrest. Had Styles been conducting a criminal investigation instead of merely executing his community caretaking function, he likely would have asked his dispatcher to run a "Triple I" check on McKenna, as did the officer in Gonzales. See 36 Kan. App. 2d at 448. (A Triple I check refers to the "Inter- state Identification Index," a "federal-state system for the exchange of criminal history records." 28 C.F.R. § 20.3[m] [2018].) Instead, Styles merely asked dispatch to "check the in-house" information, and that check disclosed the warrant. McKenna contends that running a name for wants and warrants is generally inconsistent with a community caretaking function. That may or may not generally be true. Generally, an officer gets and keeps some identification papers when checking for warrants. That did not happen here. And asking for and verbally getting a name, given the situation McKenna found herself in, coupled with the facts established by Styles' testimony, is not necessarily for investigative purposes. Styles testified that his practice in similar situations was to drive the intoxicated person home, and that is what he anticipated doing here. And if he were to drive her home in his car, it is reasonable for him to want to know whether she was wanted for a violent crime and may pose a danger to him. For that matter, doing a quick limited check for warrants while interacting with McKenna was reasonable as a check for potential dangers. Styles' act of running a local warrants check, under these circumstances, was directly tied to the public safety concern that instigated the stop. It is important that Styles did not take from McKenna an identification card, a driver's license, or any other item. An encounter becomes a detention once a reasonable person would no longer have felt free to go. Generally, when an officer takes a person's identification, that person no longer reasonably feels free to leave

VOL. 57 COURT OF APPEALS OF KANSAS 739

State v. McKenna until the document is returned. State v. Grace, 28 Kan. App. 2d 452, 458, 17 P.3d 951 (2018). But nothing Styles did compelled McKenna to wait for the dispatcher to respond. Her own needy condition caused that result. We noted the distinction between requesting a name and retaining a document in Weaver, where a panel found "[b]y requesting and retaining Weaver's driver's license before he refused medical treatment, [the officer] impermissibly engaged in investigative acts during the safety stop":

"The body camera footage also shows that Purdin obtained and retained Weaver's driver's license and asked about ownership of the car Weaver was driving before Weaver refused medical treatment and the medics left the scene. Our Supreme Court has held that an officer's mere request for identification usually will not constitute a seizure. See State v. Pollman, 286 Kan. 881, 888, 190 P.3d 234 (2008). But in Pollman, the court held that an officer's retention of an identification card is one factor to be considered in applying the totality of the circumstances test, and that factor may, absent offsetting circumstances, mean a reasonable person would not feel free to leave or otherwise terminate an encounter with the officer. 286 Kan. at 889. Similarly, this court has repeatedly held that although an officer may request identification during a public safety stop, retaining an identification card or driver's license exceeds the scope of a public safety stop. See, e.g., State v. Manwarren, No. 119,520, 2019 WL 1575375, at *6-7 (Kan. App. 2019); Messner, 55 Kan. App. 2d at 637." State v. Weaver, No. 119,956, 2019 WL 2147678, at *8 (Kan. App. 2019) (unpublished opinion).

That Styles never took or kept any of McKenna's documents distinguishes this case from others we have decided, including the recent case of State v. Ellis, 57 Kan. App. 2d 477, 453 P.3d 882 (2019), that McKenna cites.

"This court has held on multiple occasions, however, that an officer goes beyond the permissible scope of a welfare check or public-safety stop by retaining a person's identification and running a records check for wants and warrants. See Manwarren, 56 Kan. App. 2d at 948-49; Messner, 55 Kan. App. 2d at 637; Gonzales, 36 Kan. App. 2d at 458. This is because an officer's authority to conduct welfare checks and safety stops is not based on a suspicion of criminal activity, but rather a need to check on a person's health or confirm the safety of a situation. Once an officer determines the person is not in need of assistance, the welfare check ends. Any further action constitutes an investigatory detention. See Manwarren, 56 Kan. App. 2d at 949; Messner, 55 Kan. App. 2d at 637." Ellis, 57 Kan. App. 2d at 484.

See also State v. Brodin, No. 101,422, 2010 WL 1462709 (Kan. App. 2010) (unpublished opinion) (finding when the officer asked

740 COURT OF APPEALS OF KANSAS VOL. 57

State v. McKenna for and obtained Brodin's driver's license the encounter stopped being an encounter and became a detention); State v. List, No. 102,851, 2010 WL 5490733 (Kan. App. 2010) (unpublished opinion) (finding officer's request for identifying documentation exceeded the scope of the safety stop and thus violated List's constitutional rights). Under these facts, no suppression was warranted. Styles' contact with McKenna was justified as a public safety stop and did not exceed its bounds. We find it unnecessary to reach the State's alternative argument that the attenuation doctrine applies.

Affirmed.

VOL. 57 COURT OF APPEALS OF KANSAS 741

State v. Arceo-Rojas

___

No. 119,266

STATE OF KANSAS, Appellee, v. ERIKA YAZMIN ARCEO-ROJAS, Appellant.

___

SYLLABUS BY THE COURT

1. SEARCH AND SEIZURE—Motion to Suppress Evidence—Appellate Re- view. Appellate courts use a bifurcated standard of review when considering a motion to suppress evidence. We review the factual underpinnings of the decision for substantial competent evidence, and we review the ultimate legal conclusion drawn from those facts de novo. Substantial competent evidence exists when a reasonable person could accept the evidence as being adequate to support a conclusion. While engaging in this review, we do not reweigh the evidence, assess witness credibility, or resolve evidentiary conflicts.

2. SAME—Warrantless Search and Seizure—State's Burden of Proof. The burden is on the State to establish the lawfulness of a warrantless search and seizure.

3. CONSTITUTIONAL LAW—Fourth Amendment and Section 15 of Kansas Constitution Bill of Rights Protection against Unreasonable Search and Seizures. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights both protect individuals against unreasonable searches and seizures. Constitutional issues may arise when a law enforcement officer stops a vehicle on a public roadway, and therefore restrains an individual's liberty, because the stop constitutes a seizure under the Fourth Amendment.

4. POLICE AND SHERIFFS—Traffic Stop—Reasonable Suspicion of Traffic Infraction. A police officer may perform a traffic stop if he or she reasonably suspects that the driver committed a traffic infraction.

5. SAME—Traffic Stop—Reasonable Suspicion. Reasonable suspicion exists when a law enforcement officer has a specific, objective, articulable basis for believing that the person being detained is committing, has committed, or is about to commit a crime.

6. SEARCH AND SEIZURE—Reasonable Suspicion—Question of Law. The existence of reasonable suspicion is a question of law.

7. SAME—Traffic Stop without Reasonable Suspicion—Suppression of Evi- dence under Exclusionary Rule. If an officer executed a traffic stop without reasonable suspicion that the driver was committing a traffic infraction or

742 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas

crime, then the evidence discovered later during that stop may be suppressed under the exclusionary rule.

8. STATUTES—Construction by Courts. The courts are to construe statutes to avoid unreasonable or absurd results.

9. SEARCH AND SEIZURE—Traffic Stop—When Unlawful. A traffic stop may become unlawful if it is prolonged beyond the time reasonably required to issue a citation or a warning ticket.

10. SAME—Traffic Stop—Law Enforcement's Mission. The mission of a traffic stop includes checking the driver's license, determining whether the driver has outstanding warrants, reviewing the car's registration, and reviewing the car's proof of insurance. Dog sniffs are not part of a traffic stop's mission.

11. SAME—Traffic Stop—Reasonable Suspicion That Crime Occurred Ex- tends Stop. A police officer may extend a traffic stop if the police officer develops reasonable suspicion or probable cause to believe another crime has occurred during the traffic stop.

12. SAME—Traffic Stop—Reasonable Suspicion—Totality of Circumstances. Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer. In determining whether reasonable suspicion exists, the court must judge the officer's actions in light of common sense and ordinary human experience.

13. SAME—Traffic Stop—Totality of Circumstances Standard—Application. The totality of the circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them. A reviewing court must give due weight to the factual inferences drawn by both the trial court and the law enforcement officers. The totality of the circumstances standard does not envision a reviewing court labeling or ranking each factor as to innocent or suspicious appearances. Instead, the court determines whether all the circumstances justify the detention. The relevant inquiry is not whether particular conduct is innocent or guilty but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. The totality of the circumstances standard precludes a divide-and-conquer analysis under which factors that are readily susceptible to an innocent explanation are entitled to no weight.

14. POLICE AND SHERRIFFS—Traffic Stop—Officer May Broaden Inquiry if Suspicions Arise. A police officer need not ignore evidence that another crime occurred when completing a traffic stop. A police officer may broaden his or her inquiry when the detainee's actions and the circumstances suggest a crime unrelated to the traffic stop has occurred.

VOL. 57 COURT OF APPEALS OF KANSAS 743

State v. Arceo-Rojas

15. SAME—Traffic Stop—Scope of Stop---Travel Plan Questioning Consider- ations. Discrepancies in travel plans or histories have been used as objective reasonable suspicion factors, depending on the nature of the discrepancy. As with unusual travel plans, inconsistencies in information provided to the officer during the traffic stop may give rise to reasonable suspicion of criminal activity. Discrepancies that arouse suspicion include an individual's internally inconsistent statements and the inconsistencies between a passenger and driver's statements regarding travel plans.

16. SAME—Traffic Stop—Reasonable Suspicion—Factors. Because air freshener and other strong fragrances are known for masking drug odor, air freshener and other strong fragrances may contribute to a police officer's reasonable suspicion.

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed February 7, 2020. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

GREEN, J.: Lieutenant Justin Stopper stopped Erika Yazmin Arceo-Rojas on I-70 for driving too long in the left lane and an unsafe lane change. During the traffic stop he began to suspect that Arceo-Rojas and her passenger were transporting illegal drugs. After completing the traffic stop, he detained Arceo-Rojas until a K-9 unit arrived and performed a dog sniff of her car. The dog signaled that he detected drugs in the car. When Lieutenant Stopper searched the car, he found a large quantity of marijuana. The State charged Arceo-Rojas with possession of marijuana with intent to distribute and with no drug tax stamp. Arceo-Rojas moved to suppress the drug evidence. The trial court denied her motion and convicted her on both counts after a bench trial. Arceo-Rojas appeals, arguing that Lieutenant Stopper lacked a legally recognized reasonable suspicion for both the initial traffic stop and the later extension of the stop while waiting for the K-9 unit. For the reasons stated later, we affirm. On November 4, 2016, Lieutenant Justin Stopper of the Geary County Sheriff's Department stopped a car on I-70; the driver was later identified as Arceo-Rojas. Lieutenant Stopper is an eight- year veteran of the Geary County Sheriff's Department. Before

744 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas that, he was employed for two years as an officer with the Junction City Police Department. In training for employment in law enforcement, Lieutenant Stopper attended three academies, including the Law Enforcement Training Center, where he successfully completed his course of study. Since his certification as a police officer, Lieutenant Stopper testified that he had completed about 400 hours of additional training which is required to maintain his certification as a police officer. Of particular relevance to this appeal, in addition to the 400 hours of general law enforcement training, Lieutenant Stopper testified that he had received over 300 hours in specialized training specifically related to criminal and drug interdiction. Lieutenant Stopper stopped Arceo-Rojas for two alleged traffic offenses. But while conducting the traffic stop, he began to suspect Arceo-Rojas was trafficking drugs. After completing the traffic stop, Lieutenant Stopper detained Arceo-Rojas until a K-9 officer came to the scene and completed a dog sniff of Arceo-Ro- jas' car. When the dog signaled, Lieutenant Stopper searched the car and found marijuana in a large black duffel bag. The State charged Arceo-Rojas with possession of marijuana with intent to distribute and no drug tax stamp. Arceo-Rojas moved to suppress the drugs and other evidence found as a result of the stop and search. The trial court held a hearing on the motion on May 22, 2017. Lieutenant Stopper testified that on November 4, 2016, he stopped Arceo-Rojas for "lingering in the left lane" and an "unsafe lane change." He stated that when he first observed Arceo-Rojas' car, she was driving in the left lane on I-70 next to another car in the right lane; both cars were going 74 mph. He testified that Arceo-Rojas remained in the left lane without passing the other car—and in fact "fell back" behind the other car at one point—for at least 3 miles. With respect to the "unsafe lane change," Lieutenant Stopper testified that his car, Arceo-Rojas' car, and the car in the right lane crested a hill where another police car sat stationary at the side of the road. The car in the right lane slowed down, and then Arceo- Rojas "overtook that vehicle, turned her turn signal on, and then

VOL. 57 COURT OF APPEALS OF KANSAS 745

State v. Arceo-Rojas cut over in front of that vehicle and left well less than a second following distance for the vehicle behind it." Lieutenant Stopper testified that after he stopped Arceo-Rojas' car, he walked up to the passenger side of the car and asked Arceo- Rojas for her driver's license and car rental documents. As he approached the car, he noticed that Arceo-Rojas had not turned her right turn signal off and he attributed this to possible "auditory exclusion," when a person is so stressed out that they "block out" background sounds. Once at the car, he noticed that both Arceo- Rojas and her passenger appeared to be very stressed, evident by "breathing patterns and a visible heartbeat in their stomach area." He also noticed a "strong fragrance" coming from inside the car— which he perceived as either a type of perfume or an air freshener—that dissipated quickly. He noted a large black duffel bag in the back of the car, surrounded by scattered clothes and suitcases. Lieutenant Stopper also testified that he read the rental agreement. It showed that the car was rented on November 2 in Wash- ington state and was due back November 7 in the same location. He testified that based on his years of experience in law enforcement and "over 300 hours in specialized training," he knew that drug traffickers frequently make "really short, fast trips" to limit their exposure to law enforcement. Lieutenant Stopper stated that the rental agreement showed the car was rented to the passenger's husband, who was not present. According to Lieutenant Stopper, drug traffickers frequently use rental cars rented by third parties not actually traveling in the car. Lieutenant Stopper admitted that the passenger told him the car's rental period could be extended. Lieutenant Stopper stated that he took Arceo-Rojas' driver's license and reviewed the rental agreement. He asked Arceo-Rojas to come back to his police car with him; she complied. In the police car, Lieutenant Stopper asked Arceo-Rojas about her travel plans. Arceo-Rojas told Lieutenant Stopper that she and the passenger were driving from Washington to Cleveland, Ohio, because she had a possible job transfer to Cleveland; she stated that they intended to stay in Cleveland for a couple days. Arceo-Rojas also told Lieutenant Stopper that she and the passenger rented the

746 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas car. She also stated that she was in a dating relationship with the passenger. After questioning Arceo-Rojas in the car and running a warrant and criminal history check on her, Lieutenant Stopper walked back to the rental car to question the passenger about the pair's travel plans. The passenger told him that "[o]riginally, they were going to go to Utah, but then they changed their mind and said they were going to Cleveland." Lieutenant Stopper testified that when he asked the passenger why they were going to Cleveland, she stated that they were going to buy some sports jerseys because Arceo-Rojas' favorite sports team was in Cleveland. Later, she mentioned that Arceo-Rojas might have a job possibility in Cleve- land. The video, however, shows that the first reason the passenger gave for the trip was for Arceo-Rojas' job and that Arceo-Ro- jas wanted to move. She further stated that she did not know how long they would stay in Cleveland, but she had two weeks off work. The passenger also stated that her husband had rented the car because she did not have a credit card. Lieutenant Stopper testified that the longer he remained in contact with the passenger and Arceo-Rojas, the more stressed they appeared. Next, Lieutenant Stopper walked back to his police car to write Arceo-Rojas a citation. He continued to question Arceo-Ro- jas about her travel plans. He asked why the pair was using I-70 to travel to Cleveland from Washington, as I-70 was significantly farther south than other available interstate routes, thus adding time to their trip. Arceo-Rojas responded that she was following her GPS. Lieutenant Stopper testified that a lot of times drug traffickers use nondirect routes to their destinations to avoid law enforcement. Then, Lieutenant Stopper issued Arceo-Rojas a notice to appear for "improper driving on a lane roadway" and returned her license and the rental documents. He asked if he could search her car; she refused. He asked if she would wait for a K-9 to come to the scene and sniff her car; she refused. At this point Lieutenant Stopper had already called a K-9 officer who was en route but had not yet arrived. Lieutenant Stopper decided to detain Arceo-Rojas until the K-9 unit arrived a short time later. Lieutenant Stopper stated that he decided to detain Arceo-Rojas because of the totality of the circumstances, including

VOL. 57 COURT OF APPEALS OF KANSAS 747

State v. Arceo-Rojas

"the heavy odor coming from the vehicle, the travel plans stated by the occupants, basically the disparity in travel plans, the large black duffel bag—that was part of it, not a whole lot of it, but that was [a part] of it—the extreme off route that they were in, the obvious signs of stress that they were exhibiting."

The State introduced into evidence Lieutenant Stopper's dashboard camera video showing his encounter with Arceo-Rojas' car and the eventual traffic stop of the car. The State also introduced into evidence the video footage from inside Lieutenant Stopper's car when he questioned Arceo-Rojas in the car. The State played the videos for the trial court. Lieutenant Stopper testified that he detained Arceo-Rojas until an officer and his K-9, Barney, arrived about four to five minutes later. The officer had Barney sniff the perimeter of Arceo- Rojas' car and Barney signaled, indicating that he detected drugs. The officer told Arceo-Rojas that Barney had signaled, and he asked if she had marijuana in the car. She indicated there was marijuana in the car but she did not know how much because someone else had put it in the car. In a large black duffel bag, Lieuten- ant Stopper found 51 vacuum-sealed bags of marijuana. In total, the individually packaged bags weighed 54 pounds. Arceo-Rojas, through counsel, cross-examined Lieutenant Stopper. He acknowledged that at no point during the stop did he smell marijuana. He admitted that he did not see Arceo-Rojas shaking when he questioned her, nor did she fumble her license or the rental documents when she produced them. He stated that the passenger told him that her husband rented the car, and she could extend the rental period if she wanted. Arceo-Rojas argued that Lieutenant Stopper lacked reasonable suspicion to stop her. She contended that she was using the left lane only to pass and that she gave the other car "ample room" when she merged back into the right lane. She also argued that Lieutenant Stopper did not have articulable and reasonable suspicion to extend the stop so that a drug dog could come and search Arceo-Rojas' car. The State argued that Lieutenant Stopper had reasonable suspicion to stop Arceo-Rojas because he followed her car for "a couple of miles" while she drove in the left lane without passing the car in the right lane. In addition, when she did pass the other car, she left less than a two-second gap between her car and

748 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas the one behind her. The State argued that based on all of his observations, Lieutenant Stopper had reasonable suspicion that Arceo-Rojas' car had drugs inside, and thus reasonable suspicion to call a K-9 unit to perform a drug search. The trial court denied Arceo-Rojas' motion to suppress. The trial court concluded that Lieutenant Stopper had "reasonable and articulable suspicion that Ms. Arceo-Rojas was staying in the left lane in violation of" K.S.A. 2018 Supp. 8-1522. The trial court also concluded that Lieutenant Stopper had "reasonable and articulable" suspicion that Arceo-Rojas failed to maintain a safe distance between her car and the car behind her. Finally, the trial court held that based on the body spray, rental vehicle taken out in a third party's name, strange travel plans, duffel bag in the back, and shifting stories, Lieutenant Stopper had reasonable suspicion to extend the stop to do a K-9 sniff. After a bench trial, the trial court found Arceo-Rojas guilty on both counts. The trial court sentenced Arceo-Rojas to 36 months of probation with an underlying 98-month prison sentence. Arceo- Rojas timely appealed.

Did the Trial Court Err When It Denied Arceo-Rojas' Motion to Suppress?

Here, Arceo-Rojas contends that the trial court erred by denying her motion to suppress. She contends that the drugs and other evidence found during the search of her car should be suppressed as the fruit of the poisonous tree because Lieutenant Stopper lacked a reasonable suspicion to stop her and to later detain her for the purpose of a drug dog sniff. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The State maintains that the trial court did not err.

Standard of review

"Appellate review of a motion to suppress evidence is bifurcated: The factual underpinnings of the decision are reviewed for substantial competent evidence while the ultimate legal conclusion drawn from those facts is reviewed de novo. Substantial competent evidence is evidence that a reasonable person could accept as being adequate to support a conclusion. We do not reweigh the evidence, assess witness credibility, or resolve evidentiary conflicts. [Citations omitted.]" State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018).

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State v. Arceo-Rojas

The burden is on the State to establish the lawfulness of a warrantless search and seizure. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

Preservation

At the start of her bench trial, Arceo-Rojas entered a standing objection to the admission of evidence resulting from the stop and search of her car because she argued that the stop and search were illegal. Thus, she sufficiently preserved this issue for our review under K.S.A. 60-404. See State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014).

Was the initial traffic stop lawful?

"[W]hen a law enforcement officer displays authority and restrains an individual's liberty by stopping a vehicle on a public roadway, constitutional issues arise because a seizure occurs within the meaning of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, both of which protect individuals against unreasonable searches and seizures." State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).

A police officer may perform a traffic stop if he or she reasonably suspects that the driver committed a traffic infraction. City of Norton v. Wonderly, 38 Kan. App. 2d 797, 802-03, 172 P.3d 1205 (2007). Reasonable suspicion is "a specific, objective, articulable basis for believing that the person being detained is committing, has committed, or is about to commit a crime." State v. Kraemer, 52 Kan. App. 2d 686, 692, 371 P.3d 954 (2016). "Whether reasonable suspicion exists is a question of law." State v. Lowery, 308 Kan. 359, 364, 420 P.3d 456 (2018). If an officer executed a traffic stop without reasonable suspicion that the driver was committing a traffic infraction or crime, then the evidence discovered later during that stop may be suppressed under the exclusionary rule. See State v. Powell, 299 Kan. 690, 694-95, 325 P.3d 1162 (2014) ("When evidence is illegally obtained, its suppression may be warranted under the exclusionary rule, which is a judicially created rule that safeguards against unconstitutional searches and seizures by suppressing illegally seized evidence as a deterrent to future violations."). Here, Arceo-Rojas contends that Lieutenant Stopper lacked reasonable suspicion to stop her car in the first place. The State

750 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas maintains that Lieutenant Stopper had reasonable suspicion to stop Arceo-Rojas for violating two provisions of the traffic code: K.S.A. 2018 Supp. 8-1522(c), and K.S.A. 2018 Supp. 8-1522(a). K.S.A. 2018 Supp. 8-1522(c) requires:

"Upon a highway located outside the corporate limits of any city divided into two lanes of traffic proceeding in the same direction, all vehicles shall be driven in the right lane except when: (1) Overtaking and passing another vehicle; (2) preparing to make a proper left turn; (3) otherwise directed by official traffic-control devices; or (4) otherwise required by other provisions of law."

Arceo-Rojas does not dispute that she drove in the left lane; she also does not contest the trial court's factual findings. Instead, she insists that she complied with K.S.A. 2018 Supp. 8-1522(c)(1) because she was using the lane to overtake or pass the car in the right lane. Arceo-Rojas contends that "neither in the plain language of the statute, nor in the common-meaning of the words used in the statute, does it establish any distance or time parameters to complete the overtaking or passing maneuver." Thus, she argues, "a driver is only in violation of [K.S.A. 2018 Supp. 8-1522(c)], if the driver is not in the process of catching up with and passing another car, while traveling in the left-most lane. Taking 'too long' to pass is not restricted by the language of the statute." As the State points out, this argument is unconvincing. The State maintains that Arceo-Rojas violated K.S.A. 2018 Supp. 8- 1522(c) because she was driving in the left lane without passing the car in the right lane or otherwise fulfilling one of the delineated exceptions. The State notes that Lieutenant Stopper testified that both Arceo-Rojas and the car next to her in the right lane were going 74 mph. The State argues that "[d]riving the same speed is not overtaking, and the only reason the defendant was finally able to pass the [car next to her] was because it slowed down." Further, Lieutenant Stopper testified that at one point while Arceo-Rojas was in the left lane, her car "actually fell back a little bit" behind the car in the right lane. Finally, the State emphasizes that it "did not have to prove beyond a reasonable doubt that the defendant

VOL. 57 COURT OF APPEALS OF KANSAS 751

State v. Arceo-Rojas violated K.S.A. [2018 Supp.] 8-1522(c), but rather there was reasonable and articulable suspicion that the defendant may [have] violated K.S.A. [2018 Supp.] 8-1522(c)." Pointing out what the trial court needed to decide if Lieutenant Stopper had properly stopped Arceo-Rojas' car for a traffic violation, the court stated the following:

"So let's talk about the traffic stop first. The issue that the Court always seems to have when it comes to these traffic stops, is the difference between a reasonable and articulable suspicion and reasonable doubt. And the bottom [line] is that a lot of what, if not everything, defense counsel said about the existence or lack thereof, of a traffic violation, is correct. In the most general sense of the term correct in that, would a jury convict defendant of—of the traffic violations? And the answer is maybe, maybe not. But the issue that this Court has to consider is at the time, on November 4, 2016, was there a reasonable and articulable suspicion of traffic violations?"

The trial court then highlighted Lieutenant Stopper's testimony concerning the traffic stop:

"So, in this case, on November 4, 2016, Lieutenant Stopper observes who he later determines to be Ms. Rojas, driving eastbound on I-70, roughly mile- marker 308, and he pulls out to follow the vehicle. And prior to doing that, he observed what he thought was Ms. Rojas staying in the left lane. And so he follows Ms. Rojas and is able to see, according to his testimony, that Ms. Rojas is, basically, staying in the left lane. And, at one point, he takes a radar reading of the vehicle that he's following in the left lane, which is Ms. Rojas, and then the vehicle in the right lane, they're going 74 miles per hour. He follows them for about three miles. She maintains her position in the left lane, does not pass the vehicle, does not get back into the lane behind the vehicle. And so Lieutenant Stopper believes that there's a reasonable and articulable suspicion."

The trial court, in its conclusion, stated the following: "So the state law on this is—is clear, at least in the way it's written. And from the prospective of a—of a reasonable officer, there was a reasonable and articulable suspicion that Ms. Arceo-Rojas was staying in the left lane in violation of that statute." Arceo-Rojas points out that "[t]he common-meaning definition of 'overtake' is to 'catch up with and pass while traveling in the same direction.' Pocket Oxford English Dictionary, 640 (Ox- ford University Press, 2005)." Lieutenant Stopper likely reasonably concluded that when Arceo-Rojas was driving the same speed as the car in the right lane, and in fact falling behind it, she was not catching up with and passing that car. At the trial court level

752 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas and on appeal, Arceo-Rojas argued that her shared speed and falling behind could have been a result of her using cruise control. Nevertheless, the simple fact that she could have been using the cruise control does not mean she could not have violated K.S.A. 2018 Supp. 8-1522(c) since this statute makes no exception for its application when a driver is using cruise control. Although Arceo-Rojas argues in her brief, hypothetically, that "if a car is traveling at 74.1 miles per hour, while the car on the right lane is traveling at 74 miles per hour, as long as the car on the left lane is catching up to pass that car, it does not matter how long it takes for the car to pass . . . ." This is an unreasonable interpretation of K.S.A. 2018 Supp. 8-1522(c). For example, Lieu- tenant Stopper's car video showed that when he was behind Arceo- Rojas' car, the driver of a grey SUV attempted to pass her car by getting in behind her car while she was driving in the left lane. Nevertheless, Arceo-Rojas continued to drive in the left lane, not passing the white SUV in the right lane which she was driving along side. Out of frustration, the driver of the grey SUV who was trying to use the left lane to pass the white SUV, which Arceo- Rojas was driving alongside, moved to the right lane. As Lieuten- ant Stopper drove past the grey SUV, the driver looked towards Lieutenant Stopper and pointed in the direction of Arceo-Rojas' car. The dissent contends that Arceo-Rojas' driving in the left lane did not violate K.S.A. 2018 Supp. 8-1522(c) because the statute does not state how long a person may drive in the left lane before committing a violation. The dissent points out the following: "It is hard to determine when a driver's actions would violate the statute." 57 Kan. App. 2d at 767 (Arnold-Burger, C.J., dissenting). Yet, in both the trial court and on appeal, Arceo-Rojas has never claimed that the statute is unconstitutionally vague or ambiguous so that issue is not before us. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (Issues not raised before the trial court may not be raised on appeal.); State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (An issue not briefed is deemed waived or abandoned.). Nevertheless, the dissent acknowledges that Arceo-Rojas' vehicle drove side-by-side next to the white SUV or slightly set off

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State v. Arceo-Rojas from it for the entire time Lieutenant Stopper observed it. Moreo- ver the dissent concedes that Lieutenant Stopper observed Arceo- Rojas driving in this manner "over the course of 3 miles," during which Arceo-Rojas drove the same speed as the white SUV. 57 Kan. App. 2d at 768 (Arnold-Burger, C.J., dissenting). Clearly, Arceo-Rojas use of the left lane in this way restricted the use of the left lane of travel. In addition, it certainly interfered with other drivers' ability to pass using the left lane. K.S.A. 2018 Supp. 8- 1522(c) clearly exists to prohibit driving in this manner because doing so prohibits other vehicles from safely using the left lane for its intended purpose: passing. Besides, the simple fact that Arceo-Rojas' vehicle drove the same speed as the white SUV over the course of 3 miles shows that Arceo-Rojas had no immediate intention to pass the white SUV. Indeed, Arceo-Rojas implicitly conceded this fact when she apologized to Lieutenant Stopper for her "left lane violation." The courts are to construe statutes to avoid unreasonable or absurd results. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014). Arceo-Rojas explicitly concedes that under her interpretation of K.S.A. 2018 Supp. 8-1522(c), the "[o]vertaking and passing another vehicle" could "take a considerable amount of time and distance." Moreover, she argues that this does not matter under the plain language of K.S.A. 2018 Supp. 8-1522(c) because it "only speaks to the purpose of the car's occupation of the lane, not how long it stays there to achieve such purpose." We reject this interpretation. In the light of traffic history, we interpret the Kansas Legislature's use of the phrase "[o]vertaking and passing another vehicle" under K.S.A. 2018 Supp. 8-1522(c) shows a legislative intent to keep multilane roads and highways open for passing. Moreover, the Legislature's intent in keeping the left lanes open for passing helps to move traffic more smoothly and to prevent traffic buildup. Thus, we conclude that the trial court's factual findings and conclusions of law, based on Lieuten- ant Stopper's testimony, are supported by substantial competent evidence. To summarize, in light of Lieutenant Stopper's testimony that he observed Arceo-Rojas driving in the left lane traveling 74 mph

754 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas while the car next to her was also traveling 74 mph; that he observed her doing so for several miles from at least the 308 mile marker to the 311 mile marker; and that Arceo-Rojas in fact "fell back" behind the car in the right lane at one point while she was in the left lane, we conclude that Lieutenant Stopper had reasonable suspicion that Arceo-Rojas was driving in the left lane without meeting any of the four exceptions under K.S.A. 2018 Supp. 8- 1522(c). The trial court also found that Lieutenant Stopper had reasonable suspicion that Arceo-Rojas committed an unsafe lane change in violation of K.S.A. 2018 Supp. 8-1522(a). The dissent raises questions about Lieutenant Stopper's credibility in this regard. The dissent writes: "Stopper never mentioned anything to [Arceo-Ro- jas] about an unsafe lane change and did not include it in the warning ticket, although he claimed at the preliminary hearing and at the motion to suppress hearing that it was another basis for the stop." 57 Kan. App. 2d at 765 (Arnold-Burger, C.J., dissenting). But the district court specifically found "all of the facts that Lieu- tenant Stopper testified about, regarding the following of the vehicle, the—the Court is finding that that is what happened, in other words." Quite simply, an appellate court does not assess witness credibility, that is the function of trial courts. Boggess, 308 Kan. at 825. The trial court ruled that Lieutenant Stopper's testimony about the basis for the car stop was credible, and we may not challenge that finding. Nevertheless, having concluded that Lieutenant Stopper had reasonable suspicion that Arceo-Rojas violated K.S.A. 2018 Supp. 8-1522(c), we need not address whether Lieutenant Stopper also had reasonable suspicion that Arceo-Rojas violated K.S.A. 2018 Supp. 8-1522(a). A police officer need only have reasonable suspicion of a single traffic infraction to justify a stop. The stop here was legal because it was justified by Lieutenant Stopper's reasonable suspicion that Arceo-Rojas violated K.S.A. 2018 Supp. 8-1522(c). Similarly, this court need not address whether Lieutenant Stopper made a "reasonable mistake" of law when he stopped Arceo-Rojas, based on the holding in Heien v. North Car- olina, 574 U.S. 54, 66, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014).

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State v. Arceo-Rojas

Was Extension of the Traffic Stop Lawful?

Next, Arceo-Rojas argues that even if the initial traffic stop was lawful, Lieutenant Stopper nevertheless lacked reasonable suspicion to detain her until the K-9 unit arrived. Arceo-Rojas does not challenge the trial court's factual findings, but rather disputes the trial court's ultimate legal conclusion. The State maintains that Lieutenant Stopper had reasonable suspicion to detain Arceo-Rojas based on the facts he articulated in court. In Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), the United States Supreme Court cautioned that "[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Later in Rodriguez v. United States, 575 U.S. 348, 356, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), the United States Supreme Court clarified that "a dog sniff is not fairly characterized as part of the officer's traffic mission." The traffic stop mission typically includes "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." 575 U.S. at 355. Nevertheless, a police officer may extend the traffic stop if he or she develops reasonable suspicion or probable cause to suspect other crimes while performing the traffic stop's mission. 575 U.S. at 355. As our Supreme Court noted in State v. Jimenez, 308 Kan. 315, 324, 420 P.3d 464 (2018), police need not perform the traffic stop mission "with a blind eye." Our Supreme Court stated in State v. Morlock, 289 Kan. 980, 996, 218 P.3d 801 (2009):

"An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When 'the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.' [Citation omitted]."

Whether reasonable suspicion exists is a question of law, which this court reviews de novo; this court reviews the factual findings underlying a finding of reasonable suspicion for substantial competent evidence. State v. Sharp, 305 Kan. 1076, 1081, 390 P.3d 542 (2017). Reasonable suspicion is a lower standard than

756 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas probable cause; it is a "'particularized and objective basis'" for suspecting the person stopped of criminal activity. State v. Schooler, 308 Kan. 333, 352, 419 P.3d 1164 (2018). Reasonable suspicion requires articulation of "[s]omething more than an unparticularized suspicion or hunch." State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).

"The totality of the circumstances standard 'allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.' United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). A reviewing court must give 'due weight' to the factual inferences drawn by both the district court and law enforcement officers. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). "The totality of the circumstances standard does not envision a reviewing court pigeonholing each factor as to innocent or suspicious appearances. Instead, the court determines whether all the circumstances justify the detention. "'"The relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. [Citation omitted.] The totality of the circumstances standard precludes a 'divide-and-conquer analysis' under which factors that are 'readily susceptible to an innocent explanation [are] entitled to "no weight."' [Citations omitted.]"' Sharp, 305 Kan. at 1081-82." Schooler, 308 Kan. at 352.

During the hearing on the motion to suppress before the trial court and in its brief before us, the State argued that Lieutenant Stopper had a reasonable suspicion to detain Arceo-Rojas because his observations during the initial traffic stop led him to believe that Arceo-Rojas and her passenger were engaged in criminal activity. Nevertheless, Arceo-Rojas argues that "[i]n [Lieutenant Stopper]'s reasoning for his hunch, nothing is particularized, only a list of facts who may in fact be curious but does not specifically indicate that an individual driving cross-country is committing a crime." Arceo-Rojas also emphasizes that the trial court here stated that its decision on reasonable suspicion to extend the stop was "close." The trial court here did say that its decision was close. It concluded that Lieutenant Stopper had reasonable suspicion of criminal activity based mostly on the pair's travel plans, including the fact that Arceo-Rojas was taking such an out-of-the-way route to Cleveland from Washington. The trial court noted that their plans apparently changed, as the passenger stated that they were going

VOL. 57 COURT OF APPEALS OF KANSAS 757

State v. Arceo-Rojas to go to Utah but then decided to go to Cleveland. The trial court highlighted the suspiciousness of the rental agreement and the pair's stated travel plans:

"If the primary purpose of the trip is work-related, then why a five-day rental where the rental agreement is from 2 November to 7 November? And, sure, it can be extended, but if you know you're going to drive two-thirds the way across the country for work, a normal driver is just going to rent the vehicle for the time it's going to take to do that. And you can imagine, then, if you're going out there for work, you can stay there for a few days and then you're going to come back. Using the ways of the world, a five-day trip is going to, basically, mean you're going to Cleveland and almost doing an immediate U-turn so you can get back to Washington. So a reasonable officer would have some suspicion about that."

The trial court also pointed out that it was suspicious that the car was rented by someone who was not on the trip. The trial court further stated that the strong air freshener smell and the suitcases in the back of the car and the clothing strewn about, when combined with the earlier factors, also contributed to reasonable suspicion. Arceo-Rojas compares this case to Demarco, 263 Kan. 727. According to our Supreme Court, DeMarco was another "close" case dealing with suppression of drugs found after a traffic stop. 263 Kan. at 741. There, the trooper testified that he relied on several factors to develop "reasonable suspicion": the driver's use of I-70 to get from California to Florida, slight inconsistencies between the passenger (Bennici) and driver's (DeMarco) accounts of how the trip began, the fact that the car was rented by a third-party that was not present, the fact that the pair's trip began in Los An- geles, and above all, the driver's nervousness. 263 Kan. at 730. The trial court

"observed that of the four factors [the trooper] identified at the preliminary hearing, three of them were subjective (nervousness, use of a rental car, driving from Los Angeles) and only one was objective (inconsistency in DeMarco's and Ben- nici's stories about how DeMarco traveled to Los Angeles from Florida). The judge felt that inconsistency was weakened because DeMarco and Bennici did not arrive in Los Angeles at the same time." 263 Kan. at 731-32.

Thus, the trial court suppressed the drug evidence. On appeal, our Supreme Court affirmed the suppression order. It ruled that "nervousness alone does not provide sufficient reasonable suspicion of illegal activity." 263 Kan. at 738. Our Supreme Court

758 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas noted that travel plan inconsistencies, vague travel plans, or unusual travel plans can contribute to reasonable suspicion. 263 Kan. at 739. Nevertheless, our Supreme Court characterized the passenger and driver's inconsistent statements about travel plans as "not as marked as the inconsistencies in cases we have reviewed denying suppression." 263 Kan. at 740. With respect to the pair's trip originating in Los Angeles and their use of a rental car, our Su- preme Court noted that "[t]hese two factors cover large groups" and the Court "f[ou]nd no explanation in the record why existence of an absentee renter would suggest involvement in criminal activity." 263 Kan. at 741. Thus, our Supreme Court concluded that based on the totality of the circumstances, the trooper lacked reasonable suspicion that the pair was involved in criminal activity. Arceo-Rojas' comparison to DeMarco is not persuasive because as our Supreme Court noted in Schooler, "'assessing whether an officer unreasonably prolonged a stop involves "highly fact-specific inquiries."' United States v. Hill, 849 F.3d 195, 201 (4th Cir. 2017)." Schooler, 308 Kan. at 335. As the State points out in its brief, the specific facts in this case weigh more heavily towards a finding of reasonable suspicion than the facts in De- Marco.

Travel plans

The trial court here emphasized that Arceo-Rojas' implausible and inconsistent travel plans were the foundation for its finding of reasonable suspicion. According to Arceo-Rojas, she and the passenger were driving from Washington to Cleveland. Nevertheless, the pair was stopped while traveling eastbound on I-70 in Geary County, Kansas, which is significantly further south than more direct available interstate routes. The pair's route did not make sense for their given destination; this can contribute to reasonable suspicion. See DeMarco, 263 Kan. at 739 (recognizing both "unusual travel plans" and inconsistencies in explanations of travel plans as contributing to reasonable suspicion). Arceo-Rojas' attempted explanation that her GPS told her to take this route also did not lessen reasonable suspicion because, as Lieutenant Stopper explained, GPS devices tell people the "shortest and quickest route" and based on his knowledge of the country's interstate system, I-70

VOL. 57 COURT OF APPEALS OF KANSAS 759

State v. Arceo-Rojas was not the shortest and quickest route from Washington to Cleve- land. Moreover, Lieutenant Stopper testified that Arceo-Rojas' travel plans were implausible for another reason: "Over the course of my career, I've spoken with tens of thousands of motorists. I know it's highly uncommon for somebody to travel longer than they stayed at a location; i.e., travel for three days to a city across the country, stay one day, and then drive three days back. That's highly unusual." Not only were Arceo-Rojas' travel plans implausible, but Lieutenant Stopper correctly noted inconsistencies in her plans. Inconsistencies in travel plans can contribute to reasonable suspicion. See Schooler, 308 Kan. at 354 ("Discrepancies that arouse suspicion include 'an individual's internally inconsistent statements [and] the inconsistencies between a passenger and driver's statements regarding travel plans.' [Citation omitted.]"). Arceo- Rojas told Lieutenant Stopper that she and the passenger were dating and she was going to Cleveland to check it out because she might take a job there. The drive between Washington and Cleve- land would take several days each direction, but the car's rental agreement was only for five days. According to Lieutenant Stop- per, based on his training and experience, this kind of travel plan aligned with the tactics used by drug traffickers who "[g]enerally . . . make really short, fast trips." He explained that a short, fast trip "limits the exposure to law enforcement and possibly that they're going to get interdicted by law enforcement." Moreover, the five-day rental agreement began in Washington on November 2, 2016, and the car stop occurred on November 4, 2016, in Geary County, Kansas. At this time, after having driven for two days, Arceo-Rojas had only traveled about one half of the way to her destination. Given the duration of the rental agreement, the location of the car stop, the lengthy distance remaining to Cleveland, and then a cross-country return trip to Washington, it is obvious that Arceo-Rojas would not have had time to spend in Cleveland. Of course, these facts are inconsistent with Arceo-Rojas' claim that she was visiting the city to see if she wanted to take a job there. For example, generally someone deciding if they want

760 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas to move cross-country for a job would spend more time than that evaluating the new place. While Lieutenant Stopper conceded that the passenger told him the rental agreement could be extended, he testified that this still contributed to reasonable suspicion because "[i]n the case of rental vehicles, generally, people will rent it for the time that it's needed, because if you rent it and then extend it over the phone, generally, that actually costs more money." Further, Arceo-Rojas' account was inconsistent with her passenger's. Arceo-Rojas testified she was going to Cleveland for a "couple days" but the passenger stated that she did not know how long they would stay in Cleveland but she had two weeks off work. Together, these inconsistencies contributed to reasonable suspicion. The trial court also focused on the five-day term of the rental agreement given Arceo-Rojas' purported purpose in making the trip:

"[District Judge:] And, sure, it can be extended, but if you know you're going to drive two-thirds the way across the country for work, a normal driver is just going to rent the vehicle for the time it's going to take to do that. And you can imagine, then, if you're going out there for work, you can stay there for a few days and then you're going to come back. Using the ways of the world, a five- day trip is going to, basically, mean you're going to Cleveland and almost doing an immediate U-turn so you can get back to Washington. So, a reasonable officer would have some suspicion about that. "And on top of it, the friend says, [']well, I've got two weeks off,['] which doesn't comport with the rental agreement."

We note that the dissent concedes that Arceo-Rojas and her passenger had unusual, but consistent, travel plans. That is, the dissent contends that even though the roads that Arceo-Rojas traveled to reach Cleveland were not the most direct route, Arceo-Ro- jas and her passenger consistently stated that they were traveling to Cleveland so Arceo-Rojas could consider a new job. Because both Arceo-Rojas and her passenger consistently stated that they were heading to Cleveland for Arceo-Rojas' potential job opportunity, the dissent asserts that Arceo-Rojas' unusual travel plans did not give Lieutenant Stopper reasonable suspicion since Lieu- tenant Stopper never "asked any questions that would have elicited" the details of Arceo-Rojas' and her passenger's original travel

VOL. 57 COURT OF APPEALS OF KANSAS 761

State v. Arceo-Rojas plans. 57 Kan. App. 2d at 779mas (Arnold-Burger, C.J., dissenting). Thus, the dissent argues that it is irrelevant that Arceo-Rojas never mentioned that she and her passenger initially intended to travel to Utah. Yet, Lieutenant Stopper asked Arceo-Rojas why she was so far off course with the route she was traveling to Cleveland. In her reply to Lieutenant Stopper's question, Arceo-Rojas initially blamed "her work" for advising her to take I-70 to Cleveland but then she told the officer that she was simply following the instructions from her GPS. Certainly, if Arceo-Rojas' out-of-the-way path was the result of a travel plan, changing the destination from Utah to Cleveland, Arceo-Rojas would have told Lieutenant Stop- per about the change to her and her passenger's travel plans. In- stead, Arceo-Rojas gave inconsistent statements, blaming her in- direct route on her GPS instead of a change in travel plans.

Masking odor

Lieutenant Stopper also testified that he relied on a "strong fragrance coming from the interior of the vehicle" to form reasonable suspicion. He testified that he noticed a "strong odor" of either "cologne or perfume or air fresheners" when he approached the passenger side window of the car, but it "dissipated rather quickly" while he stood at the window. The trial court found "based on [Lieutenant Stopper's] training and experience, air freshener, body spray, something that you use to create a different smell in the car, is a way of masking the potential presence of the smell of drugs." Our Supreme Court has recognized that air freshener or other strong fragrances in vehicles can contribute to reasonable suspicion "because of its known use for masking drug odor." Schooler, 308 Kan. at 353. The dissent counters that because the strong fragrance quickly dissipated that "[t]hat fact reduces the suspicion associated with a masking agent. There was no smell in the vehicle at all, not even marijuana." 57 Kan. App. 2d at 777 (Arnold-Burger, C.J., dissenting). But the quick dissipation "meant quite a bit" to Lieutenant Stopper because it suggested that the fragrance was probably sprayed in the air. Corroborating the officer's testimony, during

762 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas the subsequent search of the vehicle a container of body spray was found in the door pocket of the passenger's door. Contrary to the dissenting view, the trial court concluded, "[b]ut you've got the air freshener that's very strong when he goes up to the door, and weakens, which suggests to a reasonable officer, that as the pullover was happening, it had been applied." It is an understatement to observe that a passenger's application of a strong fragrance inside the car's interior, knowing that a police officer will soon be in close proximity to the car's interior, is especially probative of a masking agent for illegal drugs. Lastly, the dissent's emphasis on the fact that Lieutenant Stopper failed to smell the marijuana while outside the car is easily explained given that the marijuana was found in 51 bags that were each vacuum- sealed.

Third-party car rental

In DeMarco, the trooper stated the fact that DeMarco's vehicle was rented in the name of a third party contributed to reasonable suspicion. Our Supreme Court rejected this as a factor because nothing in the record in DeMarco connected third-party vehicle rental with criminal activity. 263 Kan. at 741. Here, on the other hand, Lieutenant Stopper testified that the car was rented in the passenger's absent husband's name, and he found this suspicious based on his 10 years of law enforcement experience and over 300 hours of specialized training on criminal and drug interdiction. According to Lieutenant Stopper, "a lot of times [drug traffickers will] use vehicles registered or rented in somebody else's name." The passenger did tell Lieutenant Stopper that the car was rented to her husband, whose last name matched her last name. This makes this factor slightly less suspicious, but he was nevertheless an absent third party. Moreover, adding to the questionable nature of the third-party rental, according to the passenger, her husband had rented the car for her and her girlfriend, Arceo-Rojas, who were in a dating relationship, to take a cross-country trip without him.

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State v. Arceo-Rojas

The duffel bag

Last, we note that the dissent contends that the black duffel bag in the back of Arceo-Rojas' vehicle did not create a reasonable suspicion that Arceo-Rojas was engaging in criminal activity because many people use duffel bags when traveling. Even so, the dissent overlooks the possible significance of the duffel bag to Lieutenant Stopper. In fact, Lieutenant Stopper testified that in his experience "I've made many, many, many seizures of large amounts of drugs, specifically high grade marijuana, from similar [duffel] bags." Here, Lieutenant Stopper noticed how Arceo-Rojas and her passenger had strewn clothes all around the large duffel bag in the back of the car. Thus, Arceo-Rojas and her passenger were not using the duffel bag for its traditional traveling purpose—to store clothes. As a result, this factor supports the existence of reasonable suspicion for a dog sniff.

Conclusion

In denying Arceo-Rojas' motion to suppress, the trial court stated: "I only need to make a determination as to what a reasonable officer would have thought at the scene. And [I have] no doubt about Lieutenant Stopper's honesty in this issue." We are mindful of the trial court's credibility finding and the United States Supreme Court's admonition that the totality of the circumstances standard "allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); Schooler, 308 Kan. at 352. In sum, the totality of the circumstances, including Arceo-Ro- jas' implausible and inconsistent travel plans, the use of a masking odor in the car, and the third-party car rental and large duffel bag, considered together gave Lieutenant Stopper grounds for reasonable suspicion of criminal activity. Thus, Lieutenant Stopper had the reasonable suspicion necessary to briefly detain Arceo-Rojas until a K-9 unit arrived for a dog sniff search of the car. Because Lieutenant Stopper had reasonable suspicion for both the initial traffic stop and the later extension of the stop, we affirm the trial court's denial of Arceo-Rojas' suppression motion.

764 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas

Affirmed.

* * *

ARNOLD-BURGER, C.J., dissenting: I respectfully dissent. I believe both the traffic stop of Erika Yazmin Arceo-Rojas and the search of her vehicle were unlawful. I would reverse the district court ruling to the contrary and suppress all evidence obtained after the traffic stop, at a minimum, and certainly after Arceo-Rojas was given a warning ticket and told she was free to leave. I will address each issue in order. But first I note that the only issue before us is whether the district court should have granted the motion to suppress. We review a motion to suppress using a bifurcated standard. We review the court's factual findings for substantial competent evidence, but we review the legal conclusions drawn from those facts de novo. "Substantial competent evidence is evidence that a reasonable person could accept as being adequate to support a conclusion. We do not reweigh the evidence, access witness credibility, or resolve evidentiary conflicts. [Citations omitted.]" State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018). But when the facts are undisputed, whether the court should have suppressed the evidence is a question of law subject to de novo review. State v. Parker, 309 Kan. 1, 5, 430 P.3d 975 (2018). The burden is on the State to establish the lawfulness of a warrantless search and seizure. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). So, I begin with the reason for the stop.

The stop was unlawful because there was no violation of any traffic laws.

THE FACTS

The facts regarding the traffic stop are undisputed, mainly due to the in-car videos introduced at trial and submitted as part of the record on appeal. As a result, our review is unlimited. Lieutenant Justin Stopper with the Geary County Sheriff's De- partment observed Arceo-Rojas driving a car, a Kia Sorrento with Colorado tags, in the left lane on I-70 eastbound at the 308 mile marker. The speed limit on I-70 was 75 mph. He was traveling in

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State v. Arceo-Rojas the opposite direction and turned around to follow her. Arceo-Ro- jas kept driving in the left lane with another vehicle next to her in the right lane for 3 miles, until mile marker 311. Both cars were going 74 miles per hour and at one point Arceo-Rojas dropped slightly back from the vehicle in the right lane. There was a third vehicle coming up behind Arceo-Rojas in the right lane that was going 77 mph and traveling closely behind the vehicle Arceo-Ro- jas was trying to pass. When the vehicle in the right lane slowed down, Arceo-Rojas passed it in the left lane. She turned on her right turn signal and moved over to the right lane about two minutes after the officer started his video camera. She was stopped by the officer at mile marker 313. Stopper testified that if Arceo- Rojas had sped up to 78 mph to pass the vehicle, he would not have stopped her for speeding. But see State v. Gonzalez, 57 Kan. App. 2d 510, 511, 455 P.3d 419 (2019) (vehicle with California tags stopped for going 78 mph in a 75-mph zone). While he was still at her passenger side car window, Stopper told Arceo-Rojas that he would issue her a warning ticket for "lingering in the left lane" in violation of K.S.A. 2016 Supp. 8-1522, but he needed her to come back to his patrol car for him to write it up. Stopper never mentioned anything to her about an unsafe lane change and did not include it in the warning ticket, although he claimed at the preliminary hearing and at the motion to suppress hearing that it was another basis for the stop. But the State abandoned that argument at trial—not discussing an unsafe lane change at all. Stopper testified at trial that the sole reason for the stop was prolonged driving in the left lane. This was a position more consistent with his actions at the time of the stop. Accord- ingly, any discussion of an unsafe lane change by the majority is irrelevant as it was not a basis for the stop according to Stopper's sworn statement at trial. Although we are not bound by the district court's findings, the court found:

"[T]here was a reasonable and articulable suspicion that Ms. Arceo-Rojas was staying in the left lane in violation of that statute. And, yes, that is fairly normal driving activity, as Ms. Barnes said. Having the car on cruise control would cause the driver to do that. And maybe those are defenses at a trial for that traffic offense, but from the officer's prospective that day, there was a reasonable and articulable suspicion of the violation."

766 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas

THE LAW

Because a traffic stop is a seizure under the Fourth Amend- ment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, a police officer may perform a traffic stop only if the officer reasonably suspects that the driver has committed, is committing, or is about to commit a crime or a traffic infraction. See State v. Jones, 300 Kan. 630, 637, 333 P.3d 866 (2014). In reviewing the officer's actions, we must take a detached and objective view, evaluating the reason for the stop in light of the particular circumstances. "This detached review requires application of an objective standard: '[W]ould the facts available to the officer at the moment of the seizure . . . "warrant a man of reasonable caution in the belief" that the action taken was appropriate?'" 300 Kan. at 644. A traffic infraction provides an objective reason to effectuate a traffic stop. State v. Garza, 295 Kan. 326, 332, 286 P.3d 554 (2012). There is no dispute about which statute served as the basis for the stop of Arceo-Rojas' vehicle.

"Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply. . . . . "(c) Upon a highway located outside the corporate limits of any city divided into two lanes of traffic proceeding in the same direction, all vehicles shall be driven in the far right lane except when: (1) Overtaking and passing another vehicle; (2) preparing to make a proper left turn; (3) otherwise directed by official traffic-control devices; or (4) otherwise required by other provisions of law." K.S.A. 2016 Supp. 8- 1522.

Webster's New World College Dictionary 1043 (5th ed. 2014) defines overtaking as "to catch up with and, often, go beyond." Based on the common definition, the term overtaking does not require one to pass. Passing is defined as "going by, beyond, past, over, or through." Webster's New World College Dictionary 1066 (5th ed. 2014). So although overtaking and passing are two different concepts, the statute requires both. As long as a vehicle is in the process of overtaking or passing another vehicle it can remain

VOL. 57 COURT OF APPEALS OF KANSAS 767

State v. Arceo-Rojas in the left lane. The statute does not provide a time limit for passing another vehicle. As Stopper admitted at the suppression hearing, it is not unusual for passing to take longer when drivers are using cruise control. It is hard to determine when a driver's actions would violate the statute. Can a driver proceed into the left lane only if the driver intends to pass a vehicle? If so, how would the State ever prove the driver's intent? Is a driver required to pass another vehicle while in the left lane and is there a specific amount of time in which this pass must occur? Once a driver passes another vehicle, is he or she then required to move back into the right lane, or can the driver stay in the left lane in anticipation of passing a car ahead? What if a driver needs to exceed the posted speed limit in order to pass? What if a driver intended to pass but the car next to him or her increases speed? That said, a panel of this court, in an unpublished opinion, has found that K.S.A. 2016 Supp. 8-1522(c) is not unconstitutionally vague. It found that the statute "reasonably describes conduct that a person of common intelligence would understand is prohibited and does not contain terms that are con- fusing or susceptible to ambiguous or differing meaning." State v. Possemoto, No. 115,087, 2018 WL 297378, at *5 (Kan. App. 2018) (also involving Stopper and his allegation that Possemoto was traveling in the left lane on I-70 without passing anyone for 3 miles). So given the language of the statute, we must focus—not on whether Arceo-Rojas violated the statute beyond a reasonable doubt—but whether the facts available to the officer at the moment of the stop would warrant a person of reasonable caution in the belief that she violated the statute. My review of the undisputed facts, my observation of the events on the in-car video, and the language of the statute cause me to believe that a person of reasonable caution would not interpret Arceo-Rojas' driving as a violation of the statute. Arceo-Rojas' vehicle was side-by-side with the other vehicle or slightly set off from it for the entire time Stopper observed it. That her placement in the lane seemed to irritate the driver behind her, who was speeding, is immaterial. That driver was clearly violating the law based on Stopper's radar reading. In fact, Arceo-

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State v. Arceo-Rojas

Rojas did pass the vehicle next to her and move back to the right lane before the officer initiated his enforcement action—all while maintaining the speed limit. Even the district court judge noted that Arceo-Rojas' behavior was "fairly normal driving activity" and "[h]aving the car on cruise control would cause the driver to do that." Given the plain language of the statute—with its failure to designate a time limit on passing—and the facts here, I find it hard to believe that anyone could come to a contrary conclusion. My opinion would be different if Arceo-Rojas' vehicle was actually "hanging out" in the left lane as the deputy suggested. In other words, if there had been no cars in the right lane that were within sufficient distance to be interpreted as overtaking and passing by Arceo-Rojas. But here, she was in the process of passing, albeit over the course of 3 miles, which became obvious when she did so before the officer even turned on his emergency lights and moved in behind her. And, this was not a reasonable mistake of fact or law as the State alternatively argues. Even assuming the statute was ambiguous, an officer's reasonable mistaken interpretation of an ambiguous law may still provide reasonable suspicion to detain a driver. Heien v. North Carolina, 574 U.S. 54, 60, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). The United States Supreme Court explained that the "Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or law—must be objectively reasonable." 574 U.S. at 66. Moreover, "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." 574 U.S. at 67. Similarly, the Kansas Supreme Court has found that a mistake of law may not support reasonable suspicion in certain circumstances, noting that a police officer "must be held to a more demanding standard of legal knowledge than any citizen who may be subject to the officer's exercise of authority." Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 638, 176 P.3d 938 (2008). I agree with Arceo-Rojas' position on the language of the statute.

"The officer's interpretation of K.S.A. [2016 Supp.] 8-1522(c) created an allowance for the officer to determine how long was too long to stay on the left lane,

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State v. Arceo-Rojas when the statute clearly states that the only determination for him to make is the purpose of the driver occupying that lane. Thus, the officer here re-wrote the statute to include a temporal requirement that is not part of the unambiguous language."

Accordingly, I would find that the district court erred in denying Arceo-Rojas' motion to suppress based on an illegal stop. I would reverse the district court's decision denying the motion to suppress the evidence obtained after Stopper stopped Arceo-Ro- jas. There was no basis to stop her in the first place.

The officer had no reasonable and articulable suspicion to detain Arceo-Rojas while he waited for the drug dog to arrive and circle her car.

THE FACTS

Again, because the conversations at issue are in videos shown to the district judge and are part of the record on appeal, there can be no dispute over the facts known to the officer when he decided to detain Arceo-Rojas to await the arrival of a drug dog. On November 4, 2016, Arceo-Rojas was the driver of a white Kia Sorrento that was rented by Jason Reidt, the husband of her passenger, Elizabeth Reidt. The car was rented in Pasco, Wash- ington, on November 2, 2016, at 10:12 a.m. and was to be returned to Pasco, Washington, on November 7, 2016, at 10:15 a.m. The term of the rental could be extended. Stopper pulled the vehicle over for prolonged driving in the left lane. When he approached the passenger side window he smelled "[a] very strong fragrance that dissipated quickly." He could not tell if it was perfume, cologne, body mist, or air freshener. He thought it was a "female . . . oriented" smell. When he returned to the vehicle four-and-a-half minutes later to talk to Elizabeth, at the same passenger's window, he did not notice the fragrance anymore. But at no point did he smell marijuana. He could also see luggage and clothes in the back seat and, in the very back cargo area, he observed what looked to him like a large black duffel bag, but he was not positive it was a duffel bag. He could only say it was a large black cloth object. Arceo-Rojas handed him a valid driver's license and the rental papers for the car, which he examined. He asked her to step back to

770 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas his patrol car, which she did. The conversation was recorded on his in-car video.

"[Stopper:] Where you heading to? "[Arceo-Rojas:] Um, Cleveland? "[Stopper:] Cleveland? OK. "[Stopper:] Where you coming from? "[Arceo-Rojas:] Um, Washington. "[Stopper:] I gotcha. OK. What takes you out to Cleveland? "[Arceo-Rojas:] Well, I work for U-Haul so they are giving me . . . options for work. "[Stopper:] OK. "[Arceo-Rojas:] So. "[Stopper:] What do you mean options for work? "[Arceo-Rojas:] Like better options. They need um—I work for U-Boxing so I do— they rent—so there's a new thing, um, they get, um, boxes and let's say you want to move from let's say Washington to over there you get, um, boxes, you pack your stuff, we take the boxes to your house, you pack your stuff, and then— we ship them and stuff like that so I'm the driver. "[Stopper:] Oh, OK. "[Arceo-Rojas:] Yeah. "[Stopper:] So what . . . actually takes you up to Cleveland? "[Arceo-Rojas:] To see the—just around. "[Stopper:] Oh, really? "[Arceo-Rojas:] Yeah. "[Stopper:] How long you gonna be up there for? "[Arceo-Rojas:] Just a couple days. "[Stopper:] Oh, really? "[Arceo-Rojas:] [nods head up and down] "[Stopper:] Who rented the vehicle? "[Arceo-Rojas:] She did [pointing back to the Kia]. "[Stopper:] She did? "[Arceo-Rojas:] Yeah. "[Stopper:] OK. What's her name? "[Arceo-Rojas:] Elizabeth. "[Stopper:] OK. So they have one of those facilities in Cleveland or? "[Arceo-Rojas:] Yeah. "[Stopper:] Do you know where it's at or? "[Arceo-Rojas:] Not quite, not yet. "[Stopper:] Are you going to move out there or? "[Arceo-Rojas:] Probably. "[Stopper:] When are you thinking of moving? '[Arceo-Rojas:] I don't know, in a couple months it depends, it depends on pay, you know? "[Stopper:] Where you staying at while you're up there? "[Arceo-Rojas:] What was that? "[Stopper:] Where are you gonna stay at while you're up there?

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. . . . "[Arceo-Rojas:] We're looking at hotels. . . . . "[Stopper:] And who's that with you? "[Arceo-Rojas:] Elizabeth? "[Stopper:] Elizabeth? OK, how do you know Elizabeth? "[Arceo-Rojas:] Ummm—well we met at a club. . . . She's my friend, well my girlfriend. "[Stopper:] OK. How long have you guys been together? '[Arceo-Rojas:] A year. "[Stopper:] A year? OK, alright cool. I am going to go ask Elizabeth a couple questions I'll be right back, OK. Hold on let me [unintelligible—he then calls in her identifying information into dispatch and asks for a Triple I criminal history check]. Alright, just hang tight I'll be right back with you, OK? "[Arceo-Rojas:] OK."

You can then hear Stopper's conversation with Elizabeth at the Kia:

"[Stopper:] Hey, Elizabeth? Can I ask you a couple questions? "[Elizabeth:] Yeah. "[Stopper:] Where you guys heading to? "[Elizabeth:] Well we're [unintelligible] originally were gonna go to Utah but we're gonna go to Cleveland. "[Stopper:] You're gonna go to Cleveland? OK, what takes you out to Cleve- land? "[Elizabeth:] Well I just want to [unintelligible] for her it's because of U-Haul. "[Stopper:] U-Haul, OK—what are you guys gonna be doing in Cleveland though? "[Elizabeth:] First, we are going to get jerseys. "[Stopper:] What's that? "[Elizabeth:] We're gonna go get jerseys, that's her favorite. "[Stopper:] OK . . . why are you actually going to, to Cleveland, though? "[Elizabeth:] Because we want to move, well she wanted to move. "[Stopper:] OK . . . and you guys are thinking of Cleveland? What's in Cleve- land? "[Elizabeth:] To be honest [unintelligible]. "[Stopper:] OK [unintelligible] up there in Washington? OK. Hey, who rented the vehicle? "[Elizabeth:] My husband. "[Stopper:] Your husband? What's his name? "[Elizabeth:] Jason Reidt. "[Stopper:] OK. . . . Do you have an ID on you? [Elizabeth shuffles papers.] "[Stopper:] How long you guys gonna be up in Cleveland for? "[Elizabeth:] I got two weeks off. "[Stopper:] You got two weeks off?

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State v. Arceo-Rojas

"[Elizabeth:] Yeah. They told me we can rent it [unintelligible] can help me out. . . . I don't have a credit card. "[Stopper:] OK. Alrighty, I'll go give that back to you. Alright, she'll be back up here in just a second, OK? Alright, thank you."

I pause to note that it is during the unintelligible parts of his interview with Elizabeth that Stopper fills in the blanks with his testimony. He claims that during this portion, Elizabeth informed him that they had first gone to Utah and then from Utah decided to go to Cleveland. Elizabeth's husband rented the car because Elizabeth did not have a credit card. The rental agreement allowed them to extend the length of the rental if they needed. And Elizabeth said they would get sports jerseys in Cleveland because that is where Arceo-Rojas' favorite team was.

Stopper returns to his car where Arceo-Rojas awaits.

"[Stopper:] I'm just gonna cut you a warning ticket for the, uh, left lane violation. OK? "[Arceo-Rojas:] Sorry about that. It's been a long drive. "[Stopper:] Yep. How'd you guys end up on 70? "[Arceo-Rojas:] What was that? "[Stopper:] How did you guys end up on I-70? "[Arceo-Rojas:] Well we did the—on the—GPS whatever. "[Stopper:] Um hum. "[Arceo-Rojas:] But then at work they give me directions and I'm not really good with, um, the directions stuff, so we just, um, I don't know, from the GPS. "[Stopper:] OK. Yeah, it probably would have been a whole lot . . . faster to actually go down 80. "[Arceo-Rojas:] Oh, really? "[Stopper:] Oh, yeah, yeah, it probably would have been a whole lot faster. "[Arceo-Rojas:] Like a big difference? "[Stopper:] Yeah, probably. So . . . have you talked to them about working out there or are you just gonna kind of see what it's, what it's about? "[Arceo-Rojas:] Well the thing is that if I move over here they're thinking about giving me a raise and a better position but I don't know if I want to leave my family, you know, behind and stuff. "[Stopper:] I gotcha. "[Arceo-Rojas:] My mom and—but I don't know. They told me to come and check it out. Um, we'll see. And . . . in Washington I already have my customers—I don't know just. "[Stopper:] Do you still live on Pearl Street? "[Arceo-Rojas:] Yeah. "[Stopper:] OK. Where is . . . Pasco, Washington? Where's that located at? "[Arceo-Rojas:] It's tri-cities. Um, we're close to Oregon. It's really close to.

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"[Stopper:] OK. "[Arceo-Rojas:] Oregon [unintelligible]. You never heard of that? . . . "[Stopper:] No, actually I haven't. "[Arceo-Rojas:] There's like three cities, like close, like minutes away. "[Stopper:] You know what year that is by any chance? "[Arceo-Rojas:] Uh, 16, I believe. "[Stopper:] OK. So, uh, how did you hear about, um, Cleveland? "[Arceo-Rojas:] Work. "[Stopper:] Work? "[Arceo-Rojas:] Actually, we were just talking about it that [because] I'm a if this sounds . . . I'm a fan of the Cavaliers. "[Stopper:] Mhmm. "[Arceo-Rojas:] And I just realized that we're going to— "[Stopper:] [talking on radio] 4-0-6 go ahead. "[Arceo-Rojas:] Do you guys get to use the same car all the time or do you share cars? "[Stopper:] [This] is my take home car so I have it all the time, it's mine pretty much, so. "[Arceo-Rojas:] [unintelligible, nods] "[Stopper:] [typing on his laptop] Yeah, see it actually says [Arceo-Rojas leans in to look at screen] on here like . . . 90 would have been the fastest . . . 90 and then 80 and then . . . . "[Arceo-Rojas:] [unintelligible] "[Stopper:] Hold on just a second [talking on the radio] 4-0-6 go ahead. 10-4, unit 52 for 62788."

Stopper testified at trial that he thought it was important to show Arceo-Rojas how far off course she was so that when they went back to Washington they wouldn't make the same mistake. His stated reason for reviewing the map would indicate he was going to release her, because otherwise there would be no "return trip" to worry about. After seemingly signing off with dispatch regarding the stop, the following conversation took place:

"[Stopper:] Alrighty, well I will go ahead and give this to you. It's . . . just a warning. Make sure like I said, um, I just noticed you were there for several miles and I know that vehicle behind you was trying to get around you and go by you and stuff . . . . Make sure . . . basically think of it as like a passing lane only so if you're not passing somebody . . . basically if you have no reason to be in the left lane just hang out in the right lane, OK. "[Arceo-Rojas:] OK. "[Stopper:] But it's just a warning citation so . . . I'll give that to you. . . . Here's your license and your rental agreement. Here's the envelope that the rental agreement came in, so. "[Arceo-Rojas:] OK, perfect. "[Stopper:] Alrighty.

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"[Arceo-Rojas:] Thank you. "[Stopper:] Alrighty, take care. "[Arceo-Rojas:] Yeah, you too."

Arceo-Rojas exits the patrol car with her papers and as she is shut- ting the door, the officer calls out to her.

"[Stopper:] Miss Arceo? Can I ask you a couple questions? "[Arceo-Rojas:] What was that? "[Stopper:] Can I ask you a couple questions? "[Arceo-Rojas:] [nods affirmatively] "[Stopper:] We've got a problem with people transporting illegal items up and down the highway, guns and drugs and stuff like that. "[Arceo-Rojas:] OK. "[Stopper:] Do you have anything illegal in your car? "[Arceo-Rojas:] No. "[Stopper:] Any guns or drugs or weapons? "[Arceo-Rojas:] No, no. "[Stopper:] Can I search your vehicle? "[Arceo-Rojas:] What was that? "[Stopper:] Can I search your car? "[Arceo-Rojas:] Do you, can . . . you do that? "[Stopper:] I can ask. "[Arceo-Rojas:] Well, unless you can. I mean [shaking head no]. "[Stopper:] Well, I'm . . . just asking, I mean, can I search your vehicle? "[Arceo-Rojas:] Well can you—do you—have the right to search it right now? "[Stopper:] Well, it's up to you. "[Arceo-Rojas:] I'm just asking [about] my rights, you know. "[Stopper:] Well, you have the right to tell me 'no.' "[Arceo-Rojas:] OK well, I would appreciate if you not. "[Stopper:] OK. Would you mind if I have my, uh, canine partner come out here and run his dog around it? "[Arceo-Rojas:] Why? "[Stopper:] Because . . . I suspect you guys are involved in some criminal activity and I'm just wondering if you would mind waiting for my dog, my dog to get here? "[Arceo-Rojas:] That's, those are not, I mean . . . like my rights and stuff, I would think. "[Stopper:] OK, well, um, so I'm gonna detain you until the dog gets here and runs around your vehicle, OK? OK? So. "[Arceo-Rojas:] Can I talk to her? [motioning to Elizabeth in the rental car] "[Stopper:] No, not right now, OK? Um, just hang tight for me, OK?"

Stopper then calls the canine officer to bring the drug dog to the scene as Arceo-Rojas stands outside the car with the door open. She leans back in.

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"[Arceo-Rojas:] So, um, just a question. "[Stopper:] Yeah. "[Arceo-Rojas:] So if you stopped me for that [referring to her warning ticket] why am I retained for something else? "[Stopper:] Because . . . I'm investigating another crime right now. "[Arceo-Rojas:] But why? You can stop me another reason. "[Stopper:] Because that's what I do for a living. I'm a police officer. I'm sup- posed to recognize criminal activity. "[Arceo-Rojas:] OK, so . . . "[Stopper:] A simple traffic infraction on many times of what I do, this is all I do . . . a simple traffic infraction leads to major seizures of drugs, or weapons, or guns or murderers or kidnappers and other stuff like that so. And based on the totality of the circumstances . . . "[Arceo-Rojas:] Huh? "[Stopper:] And based on the totality of the circumstances after talking to you, what I've seen in the vehicle, what I've, um, heard from [each of] you guys, I suspected criminal activity might be afoot and so that's why I'm calling out the dogs, OK?"

As properly summarized by the majority:

"Lieutenant Stopper decided to detain Arceo-Rojas until the K-9 unit arrived. Lieutenant Stopper stated that he decided to detain Arceo-Rojas because of the totality of the circumstances, including "'the heavy odor coming from the vehicle, the travel plans stated by the occupants, basically the disparity in travel plans, the large black duffel bag—that was part of it, not a whole lot of it, but that was a part of it—the extreme off route that they were in, the obvious signs of stress that they were exhibiting.'" 57 Kan. App. at 747.

The district court denied Arceo-Rojas' motion to suppress and found that (1) the odor of body spray coming from the vehicle after the window was rolled down; (2) a third-party rental; (3) the strange route from Washington to Cleveland—along with a rental agreement too short in length to accommodate such a trip; and (4) the observation of a black bag that could contain contraband, were supported by the testimony and were sufficient to establish reasonable suspicion to extend the stop for the drug dog to arrive and walk around the vehicle. The court discounted any of the officer's testimony about nervousness on the part of the driver or passenger as unsupported by the evidence. The video simply did not reflect the extreme nervousness that the officer claimed Arceo-Rojas and the passenger displayed. Although mentioned in the majority's

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State v. Arceo-Rojas recitation of the facts, the district court also did not give any cre- dence to the testimony of Stopper about "auditory exclusion"—an indicator, according to Stopper, of a "fight or flight" response. Stopper suggested that this caused Arceo-Rojas to be deaf to the blinker and so she did not turn it off after she pulled off to the side of the road.

THE LAW

On appeal, Arceo-Rojas does not contend that the questioning about her travel plans unnecessarily prolonged the stop. Instead, she argues that once the traffic stop ended, Stopper had no reasonable and articulable suspicion to justify detaining her pending the appearance of the drug dog. An officer may expand the investigative detention beyond the duration necessary to fulfill the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. State v. Jones, 300 Kan. 630, 641, 333 P.3d 886 (2014). The United States Supreme Court has explained that the State does not meet its burden by simply proving that the officer believed the circumstances were sufficient to form a reasonable suspicion. Rather, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "Something more than an unparticularized suspicion or hunch must be articulated." State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). Our Supreme Court recently pointed out that what is reasonable depends on the totality of the circumstances in the view of a trained police officer. State v. Schooler, 308 Kan. 333, 352, 419 P.3d 1164 (2018). Moreover,

"'The relevant inquiry is not whether particular conduct is "innocent" or "guilty," but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. [Citation omitted.] The totality of the circumstances standard precludes a "divide-and-conquer analysis" under which factors that are "readily susceptible to an innocent explanation [are] entitled to 'no weight.'" [Citations omitted.]'" State v. Sharp, 305 Kan. 1076, 1081-82, 390 P.3d 542 (2017).

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While neither officers nor the courts can selectively choose the facts that would establish reasonable suspicion, "events and conditions giving rise to reasonable suspicion are fluid rather than fixed, and the existence of reasonable suspicion may change once new facts are observed by or become known to law enforcement." 305 Kan. at 1085. The State relies on the four factors cited by the district court in support of a finding that Stopper had a reasonable suspicion of criminal activity to support detaining Arceo-Rojas until the drug dog arrived. As does the State and the majority, I will focus on the sufficiency of those four items, reviewed together, in considering the continued detention of Arceo-Rojas.

a. The masking agent

"Air freshener odor in a rented vehicle has been held to contribute to reasonable suspicion because of its known use for masking drug odor." Schooler, 308 Kan. at 353. The district court found that "based on [Stopper's] training and experience, air freshener, body spray, something that you use to create a different smell in the car, is a way of masking the potential presence of the smell of drugs." That it was strong at first and then dissipated "suggests to a reasonable officer, that as the pullover was happening, it had been applied." But in looking at the totality of the circumstances, the district court does not mention that just four-and-a-half minutes later, when Stopper returns to the same window, there is no masking agent smell. That fact reduces the suspicion associated with a masking agent. There was no smell in the vehicle at all, not even marijuana. So there was apparently no smell to mask. Just as our Supreme Court stated in Sharp, "events and conditions giving rise to reasonable suspicion are fluid rather than fixed, and the existence of reasonable suspicion may change once new facts are observed by or become known to law enforcement." 305 Kan. at 1085. The new fact was that no masking odor was detectable just a short time later. This would suggest that there was no static item in the vehicle, like an air freshener or dryer sheets, masking the smell. See State v. Moore, 283 Kan. 344, 359, 154 P.3d 1 (2007)

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(car containing little clothing during a trip across the country, coupled with the odor of dryer sheets in the car, increases the possibility of reasonable suspicion); Charity v. State, 132 Md. App. 598, 631, 753 A.2d 556 (2000) (odor of a large quantity of air fresheners contributed to officer's "strong hunch" of drug related activity, but did not raise an articulable suspicion, even when combined with other factors); State v. Malone, 274 Wis. 2d 540, 562, 683 N.W.2d 1 (2004) ("The presence of seven or eight air fresheners in a vehicle occupied by three young men with an average age of 21 does not provide probable cause for the search of a vehicle, but it certainly raises suspicion and justifies reasonable inquiry." [Emphasis added.]). And without a long-acting masking agent, there was no smell of marijuana in the car, further diminishing the suspicions of a reasonable officer. This factor does not support an officer's reasonable suspicion; instead, it detracts from it.

b. Third-party rental

The trial court found that the fact that the vehicle was rented by a third party (not either of the occupants) was a factor to support reasonable suspicion. But the judge also found that because this was rented by the passenger's husband it was not typical to the officer's profile, so the suspicion was less. In fact, the judge said it was a "minor" factor. To take that one step further, even Stopper testified that once he found out the renter was the passenger's husband, his suspicion was reduced. See Demarco, 263 Kan. at 740 (Kansas officer testified that fact driver was driving a rental car was an indicator but "'not that important.'").

c. Inconsistent and implausible travel plans

The district judge described this as the "bigger" issue. He noted that traveling from Washington to Cleveland on I-70 was significantly out of the way. The explanation that Arceo-Rojas' work and her GPS sent her that way was implausible. It was also implausible that they would not rent the car for enough time to spend some time in Cleveland. The discussion about first going to Utah was only shared by the passenger, so the court viewed that

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State v. Arceo-Rojas as inconsistent. The judge also could not understand why the parties would go to Cleveland for the sports team. Discrepancies in travel plans have been used as objective reasonable suspicion factors in other cases, depending on the nature of the discrepancy. Schooler, 308 Kan. at 354. Things such as internally inconsistent statements as well as inconsistencies between the driver and passenger over travel plans have provided the basis for detention. But as the Tenth Circuit has noted, there is a difference between unusual travel plans, which do not contribute to reasonable suspicion, and "bizarre, inconsistent and evasive" ones, which do. United States v. Simpson, 609 F.3d 1140, 1151 (10th Cir. 2010). The court explained the distinction:

"We have credited inconsistent travel plans as a factor contributing to reasonable suspicion when there are lies or inconsistencies in the detainee's description of them. For example, a police officer could reasonably believe a travel plan was implausible—and the person was lying—if that person claimed that he or she had left a certain city by car an hour ago if the officer pulled over that person, 200 miles from the city. To this extent, the factor seems noncontroversial: lies, evasions or inconsistencies about any subject while being detained may contribute to reasonable suspicion. In contrast, this circuit has been reluctant to deem travel plans implausible—and hence a factor supporting reasonable suspicion— where the plan is simply unusual or strange because it indicates a choice that the typical person, or the officer, would not make." 609 F.3d at 1148-49.

I submit that is exactly what we have here. There were no obvious lies in any comments made by Arceo-Rojas or Reidt. Reidt mentioned they had first gone to Utah, but Arceo-Rojas was not asked any questions that would have elicited that detail. Their stories were not inconsistent, in fact they were amazingly consistent. They both said—independently—that they were going to Cleve- land to check it out because Arceo-Rojas' employer, U-Haul, may allow her to transfer there for more money. That was the explanation both had for the trip. They both conveyed that Arceo-Rojas' favorite team was the Cavaliers and Reidt said they may pick up jerseys while they were there. I find nothing in the discussion that suggested they were going to Cleveland for the sole purpose of buying jerseys. This was a factual error by the district court and a misrepresentation of the facts by the State. They were taking a route that was not the fastest—a route the typical person or the officer would not take. Arceo-Rojas appeared

780 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas surprised she was on the wrong route. This is nothing like the cases that our Supreme Court pointed out in Schooler that would support a finding of reasonable suspicion based on travel plans.

"Compare Simpson, 609 F.3d at 1152-53 (travel plans contributed to reasonable suspicion when defendant claimed he drove from Nebraska to Reno, Ne- vada, just to spend one night there playing '21' at his friend's house, but despite the trip's great length and short duration, the defendant could not say when he left and when he planned to return), and United States v. Santos, 403 F.3d 1120 (10th Cir. 2005) (travel plans suggested criminal activity when driver [1] gave the officer multiple versions about the length of his intended stay at his destination, [2] was inconsistent about details such as whether a person he intended to visit was his sister or half-sister, and [3] was unable to recall his mother's telephone number or the ages of his sister's children, because confusion about details often indicates story is being fabricated), with United States v. Wood, 106 F.3d 942, 944 (10th Cir. 1997) (travel plans did not suggest criminal activity when unemployed driver [1] claimed to be on six-week vacation; [2] told officer he rented car in San Francisco instead of Sacramento, but corrected mistake when confronted with it; and [3] despite rental agreement reflecting car due back in Sacramento, explained that rental company was aware of his plans to use car for one-way travel)." Schooler, 308 Kan. at 354-55.

I do not believe Arceo-Rojas' travel plans here were so out of the realm of belief as to be the biggest factor or even a factor in the reasonable suspicion calculus. Nor do any perceived discrepancies rise to the level demanded by our caselaw to support reasonable and articulable suspicion of a crime based on travel plans.

d. The duffel bag

The district court found that the duffel bag in the back of the Kia, which could hold drugs, is a "minor" factor in the calculus, but a factor. Stopper testified that he "made many, many, many seizures of large amounts of drugs, specifically high-grade marijuana, from similar [duffel] bags." So he believed this bag could have contained drugs. But a black duffel bag is also a common bag carried by travelers. In fact, the lack of luggage is more likely used as a basis to stop than too much luggage. See United States v. Wisniewski, 358 F. Supp. 2d 1074, 1092 (D. Utah 2005) (very little luggage in the automobile given the stated purpose of the trip), aff'd 192 Fed. Appx. 749 (10th Cir. 2006) (unpublished opinion); see also United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (noting that "the lack of luggage for an alleged two week

VOL. 57 COURT OF APPEALS OF KANSAS 781

State v. Arceo-Rojas trip" was a factor supporting a reasonable suspicion finding); United States v. Pulido-Vasquez, 311 Fed. Appx. 140, 145 (10th Cir. 2009) (unpublished opinion) (lack of luggage even though two men claimed to be taking an overnight trip was a factor sug- gesting illegal activity). A small gym bag, as opposed to the large black duffel bag here, has been the basis for officers to suspect drugs in other cases. See United States v. Correa, 641 F.3d 961, 964 (8th Cir. 2011) (small gym bag which officer considered too small for the trip described). The conclusion that because he has stopped many cars with black duffel bags that contained drugs so he had reason to believe all black duffel bags contain drugs highlights an inherent problem with officer testimony regarding drug cues that I would be remiss if I did not address. Stopper testified to many things based on his extensive and specialized training in "criminal and drug interdiction." In determining what cues he looks at to determine whether "criminal activity [is] afoot," Stopper testified that "[t]he list is endless, as far as the indicators of criminal activity, if you will." This response— and his testimony that he has seized lots of drugs in black duffel bags—highlights the problem with the introduction of and the overreliance on profiles of drug courier activity. Although Stop- per's experience and training may inform him how drug couriers transport their product and illicit gain across the country, it does not present that information as a hit rate. In other words, we may know that drug couriers show lots of behaviors enumerated and grouped into the profile, but we have no idea how many people Stopper has stopped (or collective officers nationwide have stopped) that also exhibited the same behaviors but were not drug couriers. Those are the victims of profiling. There is simply no data to show how often the profiles are right versus how often they are wrong. It is hardly different than saying, "all cars I have stopped with drugs have four tires, this car has four tires, therefore it must contain drugs." Without testimony or facts to support how often this fact or combination of facts results in a legal drug seizure and how often it does not, it has little meaning and is prone to arbitrary application.

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State v. Arceo-Rojas

This phenomenon has long been discussed in legal literature and caselaw. "Federal agents have asserted all of the following traits as parts of a drug-courier profile:  arrived late at night  arrived early in the morning  arrived in afternoon  one of first to deplane  one of last to deplane  deplaned in the middle  purchased ticket at airport  made reservation on short notice  bought coach ticket  bought first-class ticket  used one-way ticket  used round-trip ticket  paid for ticket with cash  paid for ticket with small denomination currency  paid for ticket with large denomination currency  made local telephone call after deplaning  made long-distance telephone call after deplaning  pretended to make telephone call  traveled from New York to Los Angeles  traveled to Houston  carried no luggage  carried brand-new luggage  carried a small bag  carried a medium-sized bag  carried two bulky garment bags  carried two heavy suitcases  carried four pieces of luggage  overly protective of luggage  disassociated self from luggage

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 traveled alone  traveled with a companion  acted too nervous  acted too calm  made eye contact with officer  avoided making eye contact with officer  wore expensive clothing and gold jew- elry  dressed casually  went to restroom after deplaning  walked quickly through airport  walked slowly through airport  walked aimlessly through airport  left airport by taxi  left airport by limousine  left airport by private car  left airport by hotel courtesy van  suspect was Hispanic  suspect was black female

"Needless to say, it would be extremely difficult for anybody not to come within such a profile." Cole, No Equal Justice: Race and Class in the American Criminal Justice System 47-49 (1999) (citing Fluid Drug Courier Profiles See Everyone as Suspicious, 5 Crim. Prac. Man. (BNA) 333-35 [July 10, 1991]).

See also Becton, The Drug Courier Profile: "All Seems Infected That Th' Infected Spy, As All Looks Yellow to the Jaundic'd Eye," 65 N.C. L. Rev. 417, 439-44 (1987) (listing and discussing drug courier profile characteristics from reported decisions). United States Supreme Court Justices Thurgood Marshall and William Brennan pointed out the problems with relying on these profiles in their dissent in United States v. Sokolow, 490 U.S. 1, 13, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989):

"Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's 'chameleon-like way of adapting to any particular set of observations.'"

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See also State v. Chapman, 23 Kan. App. 2d 999, 1010, 939 P.2d 950 (1997) ("The point is not that drug traffickers will often exhibit such behavior, but that many innocent motorists exhibit precisely the same behavior."). Just as Stopper said, the list of indicators of criminal activity is indeed endless. And, there seems to be no agreement on how many indicators are necessary to put a driver into the drug courier category. One or two? Three or four? It seems to vary per case and again opens the door to arbitrary or even discriminatory application. Two other issues bear mentioning. Although we are not bound by the district judge's conclusions given the undisputed facts, I agree with the district judge that any reliance on the part of Stop- per on nervousness was simply not supported by the evidence. Be- havioral indications of nervousness are not at all apparent on the video. In fact, Arceo-Rojas appears calm given the circumstances. Likewise, Stopper testified about the "auditory exclusion" effect without any foundation or expert testimony about its acceptance in the scientific community or its applicability in this situation. It was proper for the district court to exclude it from the reasonable suspicion determination. I recognize that the United States Supreme Court has cautioned against a "divide-and-conquer" approach in evaluating the totality of the circumstances. See United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (rejecting appellate court's evaluation of disparate facts in isolation from each other in deciding whether reasonable suspicion existed). I agree that the relevant question is not whether each fact taken in isolation may have an innocent explanation, but whether the facts as a whole support the finding. But none of the four factors relied on by the district court support a finding of reasonable suspicion either together or separately. There was insufficient evidence to support the district court's legal conclusion.

"Reliance on the mantra 'the totality of the circumstances' cannot metamorphose these facts into reasonable suspicion. Although the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is 'impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.'" United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (citing Karnes v. Skrutski, 62 F.3d 485, 496 [3d Cir. 1995]).

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Although that ends the inquiry, the lack of reasonable suspicion is further bolstered when we look at the various cues that have been propounded by Kansas officers—all professing to be highly trained in drug interdiction techniques. If the following nonexclusive list of items are indicators of drug trafficking, certainly their absence must weigh in favor of the driver. A court cannot arrive at probable cause simply by piling hunch upon hunch. "[I]n determining whether probable cause to arrest existed, we look not only to the facts supporting probable cause, but also to those that militate against it." United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). Note, not all of these have been accepted as valid factors by Kansas courts but are simply factors that Kansas law enforcement officers—who have testified that they are highly trained in drug interdiction cues—have indicated are factors that point to drug trafficking. 1. Arceo-Rojas had no criminal history of concern to the officer. If there was, he would have stated it as part of his detention calculus as he did in Schooler. 308 Kan. at 340. 2. She did everything requested of her. Her driver's license and rental agreement were in order. 3. Stopper did not see any "burner" phones—also associated with drug trafficking—as he did in State v. Westmoreland, No. 117,833, 2018 WL 3198410, at *2 (Kan. App. 2018) (unpublished opinion). 4. Stopper did not note any "visibl[e] shaking" as he did in State v. Crudo, No. 112,805, 2015 WL 7162274, at *2 (Kan. App. 2015) (unpublished opinion). 5. Apparently, there was more than one key on Arceo-Rojas' key ring. Stopper has testified in the past that having only one key on a key ring is an indicator that the person may be transporting drugs. United States v. Acevedo, No. 16- 40109-DDC, 2017 WL 3437690, at *2 (D. Kan. 2017) (unpublished opinion). 6. There were not multiple cell phones or two-way radios observed in the vehicle, a factor that Kansas officers have used to support reasonable suspicion. Schooler, 308 Kan. 355-56; State ex rel. Geary County Sheriff v. Milla, No. 120,325, 2019 WL 6796205, at *7 (Kan. App. 2019) (un-

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State v. Arceo-Rojas

published opinion) (officer testified that "two way radios are commonly used by drug traffickers as they will employ a second vehicle that is either a load vehicle, mean ing it is loaded with drugs and/or large amounts of U.S. currency, or the second vehicle is an escort/decoy vehicle, which is meant to attract the attention of law enforcement to allow the load vehicle to pass unhindered"). 7. There were no trash bags in the vehicle, which officers in Kansas have also said indicate drugs are present. See Milla, 2019 WL 6796205, at *7 (officer testified that he saw, in the car, a "box of trash bags, which are commonly used to wrap drugs/drug proceeds"). 8. Arceo-Rojas did not have a radar detector in the car. Kan- sas officers have testified that it is suspicious to have a radar detector in the car when the driver is not speeding. State v. Arrizabalaga, 57 Kan. App. 2d 79, 81, 447 P.3d 391 (2019). 9. There was no odor of marijuana. State v. MacDonald, 253 Kan. 320, 324, 856 P.2d 116 (1993) (odor of marijuana coming from vehicle provides both reasonable suspicion and probable cause for a search of the vehicle). 10. There was no odor of dryer sheets. State v. Moore, 34 Kan. App. 2d 795, 796, 124 P.3d 1054 (2005) (even faint odor of dryer sheets is suspicious because dryer sheets commonly used to mask odor of marijuana). 11. Neither Arceo-Rojas nor her passenger were looking straight ahead and avoiding eye contact with the deputy. State v. Morlock, 289 Kan. 980, 982, 218 P.3d 801 (2009) (passenger's failure to make eye contact was suspicious). 12. Arceo-Rojas was not fidgety. DeMarco, 263 Kan. at 735 (driver was fidgety and could not sit still—a listed factor in suspecting drugs were in car). 13. Arceo-Rojas was not coming from or going to a city de fined as a major source city for drugs. Demarco, 263 Kan. at 730 (coming from a major source city for drugs, like Los Angeles, is part of the drug runner profile). 14. There were no hotel business cards on the floorboard of the car with handwritten numbers. Chapman, 23 Kan.

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State v. Arceo-Rojas

App. 2d at 1010 (officer testified that hotel business card with handwritten number on it was suspicious because it mirrored drug transportation procedures). 15. There were no clear plastic baggies or any portion thereof inside the vehicle. See State v. Jones, 47 Kan. App. 2d 866, 874-75, 280 P.3d 824 (2012) (officer testified that the observation of a corner of an empty plastic sandwich baggy supported a reasonable suspicion that vehicle was transporting drugs), aff'd 300 Kan. 630, 333 P.3d 886 (2014). 16. Arceo-Rojas was not traveling in a third-person's vehicle that had recently been purchased, licensed, and properly insured. See State v. Lowery, 308 Kan. 359, 362-63, 420 P.3d 456 (2018) (unclear why traveling in a third-person's vehicle that had recently been purchased, licensed, and properly insured raised suspicions, but according to the specially trained officer it did). 17. Her rental agreement was not expired. State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011) (fact that rental agreement had expired two days earlier part of reasonable suspicion consideration). 18. She was not driving a particularly large car with lots of trunk capacity. See United States v. Salzano, 158 F.3d 1107, 1112 (10th Cir. 1998) (Kansas officers asserted that large motor homes have been used by drug runners to haul large quantities of drugs). 19. There was no discrepancy between the number of people in the vehicle and the number the rental agreement stated would be traveling. 158 F.3d at 1113. 20. Nor was there a Christmas wreath in the vehicle a few days before Christmas, another nefarious sign of drug trafficking. 158 F.3d at 1114. 21. Both Arceo-Rojas and Reidt apparently looked their ages. See United States v. Garcia, 52 F. Supp. 2d 1239, 1250 (D. Kan. 1999) (listed basis for reasonable suspicion was that Garcia's wife did not appear to be the age that Garcia indicated).

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State v. Arceo-Rojas

22. There was not a Bible in plain view on the dashboard which Kansas officers have testified is a cue because it is intended to deflect from suspicion of any wrongdoing by the occupants of the vehicle. United States v. Esquivel- Rios, No. 10-40060-JAR, 2011 WL 1882452, at *1 (D. Kan. 2011) (unpublished opinion). 23. Nor was there religious paraphernalia on the gear shift, another indication of drug trafficking. United States v. Guerrero, 472 F.3d 784, 785 (10th Cir. 2007). 24. Not only was Stopper following Arceo-Rojas' car, but there was a stationary officer she passed as well. Kansas officers have testified that it is suspicious if a driver does not wave at an officer in his or her stationary vehicle while driving by the officer at 78 mph in a 75-mph zone. Gon- zalez, 57 Kan. App. 2d at 511. There is no indication here whether Arceo-Rojas waved or not, but then she wasn't speeding. 25. Highly trained Kansas officers have even testified—albeit unsuccessfully—that fast food wrappers and open maps in the passenger compartment contributed to a finding that reasonable suspicion existed to search a car for contra band. See United States v. Wood, 106 F.3d 942, 947 (10th Cir. 1997). There were no maps or wrappers in Arceo- Rojas' car. 26. But the lack of trash and maps is not always a plus because Kansas officers—in fact the same officer who tes tified food wrappers were an indicator of drug traffick ing—have also testified that a clean car without luggage in the passenger compartment is an indication of drug ac tivity. Chapman, 23 Kan. App. 2d at 1010. Arceo-Rojas had a clean car with luggage in the passenger compart ment, but it was the fact she had what appeared to perhaps be a black duffel bag that drew her into the web of known drug traffickers. The list of items not present in this case that are linked to highway drug trafficking is also endless. I hazard to guess that if nationwide testimony is examined—rather than just Kansas testimony as I have done here—it will mirror the same type of contradictory list

VOL. 57 COURT OF APPEALS OF KANSAS 789

State v. Arceo-Rojas of drug trafficking cues as discussed earlier in the age of airport drug couriers. As Justice Marshall noted, in Kansas as elsewhere, the profiles have a "'chameleon-like way of adapting to any particular set of observations.'" Sokolow, 490 U.S. at 13 (Marshall, J., dissenting). Finally, Stopper told Arceo-Rojas she was free to leave. This turned out to be a cruel trick—if one is to believe Stopper that he felt he had reasonable suspicion to continue to detain her at that point. He claims he had no intention to let her go. This is not with- standing his testimony that he showed her a map so that when Arceo-Rojas and her passenger went back to Washington, they wouldn't make the same mistake. This necessarily assumes at that point he believed they would be allowed to proceed to Cleveland and then return to Washington. The Supreme Court was clear in Schooler that the "good to go" statement made by Stopper here and in Schooler is legally irrelevant in deciding whether an officer has an objectively reasonable suspicion that a driver is engaged in criminal activity other than the traffic infraction. 308 Kan. at 351. We are not to conclude that her release signaled there was no longer any reason to detain her and we are bound by that decision. Ponds v. State, 56 Kan. App. 2d 743, 753-54, 437 P.3d 85 (2019) ("This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position."). But I firmly stand with Justice Rosen, Justice Beier, and Jus- tice Johnson in Justice Rosen's concurrence in Schooler on the danger of "using the promise of freedom" to circumvent a driver's constitutional rights. 308 Kan. at 357.

"I write separately to express my doubt that the Fourth or Fifth Amendments to the United States Constitution permit law enforcement officers to dangle liberty in front of someone like a carrot in an attempt to secure justification for the violation of individual constitutional rights. . . . [T]here should be no doubt that constitutional concerns arise when a detained traveler on the roadway is pur- posely misinformed that the basis for the detention is no longer in place and as a result the traveler is free to leave. "'You are free to go,' or anything resembling it, is a special and significant declaration. It informs a person that his or her right to freedom is once again fully intact. When used as an investigatory ploy, it undermines the significance of the liberty interest it is intended to effectuate. This is especially true when the agent

790 COURT OF APPEALS OF KANSAS VOL. 57

State v. Arceo-Rojas of the government entrusted with the power to detain is the one proclaiming the detention is no longer in force. Deputy Justin Stopper's investigatory tactics here are a threat to the integrity of an individual's right to be free from unreasonable search or seizure and the privilege against compelled self-incrimination. The specific technique of telling Schooler he was free to leave when he had no intention of letting Schooler depart reeks of fraud or coercion. . . . I would caution our law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution." Schooler, 308 Kan. 356- 57 (Rosen, J., concurring).

In conclusion, the facts set forth by Stopper as the basis for his suspicion of criminal activity on the part of Arceo-Rojas and her passenger, and upon which the district court relied, simply do not rise to the level—either individually or collectively—necessary to justify the continued detention of Arceo-Rojas. When looking at the totality of the circumstances, we must consider the quantity and quality of the evidence when evaluating whether there is reasonable suspicion. DeMarco, 263 Kan. at 735. Both the quantity and quality are lacking here. Stopper had a hunch. One that proved to be correct. But it was no more than a hunch. I would reverse the district court decision denying the motion to suppress the evidence obtained after Stop- per handed Arceo-Rojas a warning ticket and allowed her to leave. There was no further basis to detain her.

VOL. 57 COURT OF APPEALS OF KANSAS 791

State v. Terning

___

No. 119,904

STATE OF KANSAS, Appellee, v. AARON TERNING, Appellant.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Plea--- Due Process Requires Defendant Be Notified of Direct Consequences of Plea. The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects defendants in criminal cases by requiring that any plea be knowingly and voluntarily made. As part of this protection, a court considering a defendant's plea of guilty or nolo contendere must inform the defendant of the direct consequences of his or her plea. The record must affirmatively disclose that the defendant understands the potential consequences of the plea and nevertheless chooses to plead guilty or no contest.

2. CRIMINAL LAW—Plea—Postrelease Supervision Is Direct Consequence of Plea. Postrelease supervision is a direct consequence of a plea because it is definite, automatic, and immediately follows a period of imprisonment.

3. SAME—Plea—Court Must Inform Defendant of Consequences of Plea. Under K.S.A. 22-3210, a court considering a defendant's plea must determine—and the record must affirmatively disclose—that the defendant enters his or her plea voluntarily and with an understanding of its consequences. K.S.A. 2018 Supp. 22-3210(a)(2) thus requires a court to inform the defendant of the consequences of the plea, including the specific sentencing guidelines level, and the maximum penalty provided by law which may be imposed upon acceptance of such plea.

4. SAME—Motion to Withdraw Plea—District Court's Discretionary Deci- sion—Appellate Review. The decision to deny a motion to withdraw a plea lies within the discretion of the district court. On appeal, a person challenging a district court's denial must establish that the court abused its discretion in reaching that decision.

5. SAME—Postsentence Motion to Withdraw Plea—Withdrawal to Correct Manifest Injustice. When a defendant moves to withdraw a plea after sentencing, a court may only permit withdrawal to correct manifest injustice. Manifest injustice is something obviously unfair or shocking to the conscience.

6. SAME—Postsentence Motion to Withdraw Plea—Factors for Court to Consider. In determining whether a defendant has established manifest injustice in a postsentence motion to withdraw a plea, courts consider a number of factors, including (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated,

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___ State v. Terning

or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.

7. SAME—Motion to Withdraw Plea—Court Can Deny if Substantial Com- pliance with K.S.A. 22-3210. The failure to strictly comply with K.S.A. 22- 3210 does not warrant withdrawal of a plea if, upon review of the entire record, it can be determined that the plea was knowingly and voluntarily made. A court should deny a motion to withdraw a plea, even when faced with an error in the potential sentence discussed at the plea hearing, when the record discloses the plea hearing substantially complied with the requirements of K.S.A. 22-3210.

8. COURTS—Motion to Withdraw Plea—Determination Whether Plea Know- ingly Made. Kansas law vests district courts with the task of evaluating the defendant's arguments and testimony—and weighing those arguments against the unique facts and circumstances of each case—to determine whether a plea was knowingly and understandingly made.

9. SAME—Plea Hearing—Court's Duty to Inform Defendant of Maximum Penalty. K.S.A. 2018 Supp. 22-3210(a)(2) requires a court at a plea hearing to inform the defendant of the "maximum penalty provided by law which may be imposed," not the exact sentence that will be imposed at sentencing.

10. CRIMINAL LAW—Plea Hearing—No Abuse of Discretion in Facts of This Case—Defendant's Plea Knowingly Made. Under the unique facts of this case, the district court did not abuse its discretion in finding the defendant failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. Even though the court did not strictly comply with K.S.A. 22-3210 at the plea hearing, the record supports the district court's finding that the defendant's plea was knowingly and understandingly made.

Appeal from Chautauqua District Court; F. WILLIAM CULLINS, judge. Opin- ion filed February 7, 2020. Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., STANDRIDGE and WARNER, JJ.

WARNER, J.: In 2008, Aaron Terning pleaded no contest to aggravated kidnapping and rape; he was sentenced to two consecutive 165-month prison terms, plus 36 months of postrelease supervision. The parties agree that Terning should have been sentenced to a lifetime term of postrelease supervision, not the 36- month term given. Terning has now moved to withdraw his plea

VOL. 57 COURT OF APPEALS OF KANSAS 793

State v. Terning based on that error, claiming he would not have entered his plea if he had known he would be subject to lifetime postrelease supervision following his prison sentence. The district court denied his motion, finding Terning's plea—despite this error—was knowingly and voluntarily made. Under the unique facts of this case, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2007, Terning and Stephen Greger abducted a 14-year- old girl, R.R., from her home. R.R. was washing her brother's truck when Terning came up behind her, knocked her over, pep- per-sprayed her, put a ball gag in her mouth and a hood over her head, and tasered and handcuffed her. Terning then dragged R.R. into his truck and took her to a shed at Greger's house, where the pair shackled her to a table and repeatedly raped her. The next morning, Terning and Greger took R.R. out to the woods and chained her up between several trees. Somehow, R.R. was able to escape and fled to a neighbor's house. R.R. identified Greger and Terning as the culprits. The State initially charged Terning with aggravated kidnapping, two counts of rape, and aggravated sodomy; it later amended the complaint to include only aggravated kidnapping and rape. The State filed a motion for an upward durational departure based on the vulnerability of the 14-year-old victim and the brutality of Terning's conduct. The morning the case was set for trial, Terning entered into a plea agreement: Terning would plead no contest to the aggravated kidnapping and rape charges; the State would withdraw its upward-departure motion but reserve the right to seek any sentence authorized by the Kansas sentencing guidelines; and Terning would reserve the right to seek a downward departure. At the plea hearing, consistent with the terms of the plea agreement, the State withdrew its previous motion for an upward durational departure. The district court informed Terning that aggravated kidnapping and rape are severity level 1 person felonies, each carrying a possible punishment of 147 to 653 months in prison, depending on his criminal history score. The court made no mention of any term of postrelease supervision. Terning stated

794 COURT OF APPEALS OF KANSAS VOL. 57

___ State v. Terning he understood the possible punishment and informed the court he was entering the plea freely and voluntarily. The court accepted Terning's plea. Terning was 37 years old when he entered his plea. At sentencing, the court denied Terning's motion for a downward departure. The court again informed Terning that each of his convictions carried possible sentences of 147 to 653 months' imprisonment. Though Terning had a criminal history of I because he had no previous criminal record, the court found the grave nature of the crimes necessitated the aggravated sentences within the applicable sentencing box under the guidelines. The court thus sentenced Terning to 165 months' imprisonment for each crime, to be served consecutively, for a controlling term of 330 months (27 years and 6 months) in prison. The court also ordered 36 months of postrelease supervision. Terning appealed, and the Kansas appellate courts summarily dismissed. But due to various procedural delays in the petition for review process, the mandate was not issued in Terning's direct appeal until May 2017. That same month, Terning himself filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504, arguing the sentencing court improperly designated aggravated kidnapping as the primary crime and thus sentenced him to an incorrect period of postrelease supervision. Terning stated that he should have received a lifetime term of postrelease supervision under K.S.A. 2018 Supp. 22-3717(d)(1)(G). (The State filed a similar motion in 2015 but withdrew it as premature pending Terning's direct appeal.) After Terning filed his motion in 2017, the State also filed a motion under K.S.A. 22-3504, agreeing that the district court should have sentenced him to lifetime postrelease supervision. The district court appointed counsel to represent Terning, and in October 2017 Terning moved to withdraw his original plea. He argued that because "[he] was never informed of the lifetime postrelease supervision period," his plea was not knowingly and voluntarily made. He also asserted he was innocent of the charges against him. The district court held a hearing on all pending motions. Tern- ing testified that he was not advised of the mandatory lifetime postrelease supervision before entering his plea, between his plea

VOL. 57 COURT OF APPEALS OF KANSAS 795

State v. Terning and sentencing, at the sentencing hearing, or in the journal entry. He stated he was unaware at that time that his plea entailed lifetime postrelease supervision; he believed the postrelease supervision period "was only going to be a couple years . . . and then that would be over." Although Terning noted in his K.S.A. 22-3504 motion that lifetime postrelease supervision is the proper postrelease sanction for rape, he testified that he only learned that fact when he saw the State's motion in 2015. The district court denied Terning's motion to withdraw his plea. The court agreed that Terning was not told about any postrelease supervision when he entered his plea and that he was told the wrong term of postrelease supervision at sentencing. But the court noted that "[s]entencing imperfections can exist if the entire record shows that the plea was made knowingly and voluntarily." The court observed that Terning was advised at his plea hearing that the maximum penalty for each charge was 653 months in prison and that he was advised in his written plea agreement that the court could order those sentences to be served consecutively. He nevertheless pleaded no contest to both charges. Thus, the court found the error regarding the postrelease term did not prejudice him. In short, "[t]he purposes of K.S.A. 22-3210(a) were ful- filled." Terning appeals.

DISCUSSION

The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects defendants in criminal cases by requiring that any plea be knowingly and voluntarily made. Brady v. United States, 397 U.S. 742, 755-56, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). As part of this protection, a court considering a defendant's plea of guilty or nolo contendere must inform the defendant of the direct consequences of his or her plea. 397 U.S. at 755-57. And the record must affirmatively disclose that the defendant understands the potential consequences of the plea and nevertheless chooses to plead guilty or no contest. See State v. Beauclair, 281 Kan. 230, 237, 130 P.3d 40 (2006). The Kansas Supreme Court has held that postrelease supervision is a direct consequence of a plea because it is definite, automatic, and immediately follows a period of imprisonment. State v. Moody, 282

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___ State v. Terning

Kan. 181, 195-96, 144 P.3d 612 (2006); State v. Barahona, 35 Kan. App. 2d 605, Syl. ¶ 7, 132 P.3d 959 (2006). K.S.A. 22-3210 was enacted to ensure compliance with these elements of due process. Beauclair, 281 Kan. at 237; see also Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Under this statute, a court considering a defendant's plea must determine—and the record must affirmatively disclose—that the defendant enters his or her plea voluntarily and with an understanding of its consequences. Beauclair, 281 Kan. at 237. K.S.A. 2018 Supp. 22-3210(a)(2) thus requires a court to inform "the defendant of the consequences of the plea, including the specific sentencing guidelines level . . . and of the maximum penalty provided by law which may be imposed upon acceptance of such plea." Any effort to withdraw a plea, once entered, is governed by K.S.A. 2018 Supp. 22-3210(d). The decision to deny a motion to withdraw a plea lies within the discretion of the district court. State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007). On appeal, a person challenging a district court's denial must establish that the court abused its discretion in reaching that decision. State v. DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018). A judicial action constitutes an abuse of discretion if it is arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). K.S.A. 2018 Supp. 22-3210(d) sets forth separate standards for evaluating a motion to withdraw a plea, depending on the timing of the motion. A court may permit a defendant to withdraw a plea "for good cause shown" at any time before he or she is sentenced. K.S.A. 2018 Supp. 22-3210(d)(1). But when a defendant moves to withdraw a plea after sentencing—as Terning has done here—a court may only permit withdrawal "[t]o correct manifest injustice." K.S.A. 2018 Supp. 22-3210(d)(2). Manifest injustice is something "obviously unfair or shocking to the conscience." Barahona, 35 Kan. App. 2d at 608-09. In determining whether a defendant has established manifest injustice in a postsentence motion to withdraw a plea, courts consider the three factors set forth in State v. Fritz, 299 Kan. 153, 321 P.3d 763 (2014): "(1) whether the defendant was represented by competent

VOL. 57 COURT OF APPEALS OF KANSAS 797

State v. Terning counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made." 299 Kan. at 154; see also State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016) (noting that while these factors are "'viable benchmarks for judicial discretion,'" courts may examine other considerations as needs arise in a particular case). Our Kansas Supreme Court has explained that "the failure to strictly comply with [K.S.A. 22-3210] does not warrant [withdrawal of a plea] if, upon review of the entire record, it can be determined that the pleas were knowingly and voluntarily made." Beauclair, 281 Kan. at 237. In other words, a court should deny a motion to withdraw a plea, even when faced with an error in the potential sentence discussed at the plea hearing, when "the requirements of [K.S.A. 22-3210] were substantially complied with." 281 Kan. at 241. Barahona considered a circumstance where a defendant had received incorrect information regarding the term of his postrelease supervision (though in the context of a claim of ineffective assistance of counsel). This court held the "failure to advise a criminal defendant of the applicability of a postrelease supervisory period" does not violate due process "if the sentence assigned to the defendant and any mandatory supervised period following his or her release does not exceed the maximum penalty term the defendant was told at sentencing." 35 Kan. App. 2d 605, Syl. ¶ 8. Thus, because the total period of Barahona's imprisonment and postrelease supervision were less than the maximum possible sentence he was advised of at the time of his plea, the court found no due process violation. 35 Kan. App. 2d at 614-15. Terning was advised at his plea hearing that he faced a potential punishment of 147 to 653 months of incarceration on each charge. Under the sentencing guidelines, the maximum prison term Terning could be sentenced to would be 818 months—or 68 years and 2 months—653 months for rape and 165 months for aggravated kidnapping, not including postrelease supervision. See K.S.A. 21-4720(b)(2), (5) (establishing a base sentence for the primary crime, or the crime with the highest severity ranking, and calculating all nonbase sentences as criminal history I). Terning

798 COURT OF APPEALS OF KANSAS VOL. 57

___ State v. Terning was 37 years old at the time he entered his plea. If he received a sentence for this maximum term, he could be in prison until he was 105 years old. Thus, though the court did not mention postrelease supervision at the plea hearing, he was informed of a combined incarceration term not meaningfully different from life imprisonment and nevertheless decided to plead no contest to the charges. And even if Terning was aware that his criminal history would reduce his sentence under the sentencing guidelines, Tern- ing knew his sentence could (and in fact did) result in a prison term that would last well into his 60s. While it is true, as the dissent observes, that Terning's originally imposed sentence was mathematically shorter than an inde- terminate term of lifetime postrelease supervision, our caselaw does not demand such a rigid application of Barahona. Otherwise, a defendant could automatically withdraw his or her plea whenever a court failed to discuss mandatory lifetime postrelease supervision at the plea hearing—regardless of the defendant's age at the time of sentencing, the potential sentencing range, and the many non-numeric factors a defendant may consider when deciding whether to enter a plea. Instead, Kansas law vests district courts with the task of evaluating the defendant's arguments and testimony—and weighing those arguments against the unique facts and circumstances of each case—to determine whether a plea was knowingly and understandingly made. See Beauclair, 281 Kan. at 237. And appellate courts do not substitute our view on appeal; we only reverse a district court's assessment when the court abuses its discretion. DeAnda, 307 Kan. at 503; Green, 283 Kan. at 545. Under these circumstances, the district court did not abuse its discretion in finding that Terning failed to demonstrate he would not have entered his plea if he had been informed that he would be subject to lifetime postrelease supervision. That is, even though the court did not strictly comply with K.S.A. 22-3210 at the plea hearing, the record supports the district court's finding here that Terning's plea was knowingly and understandingly made. We acknowledge that this court reached a different conclusion in State v. Metzger, No. 115,056, 2017 WL 2838268 (Kan. App.

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State v. Terning

2017) (unpublished opinion), rev. denied 307 Kan. 992 (2018) (re- versing the district court's denial of a motion to withdraw his plea). But in Metzger, the defendant was incorrectly advised of a maximum sentence of 443 months' combined incarceration and postrelease supervision (or 36 years and 11 months)—a period meaningfully different from the correct mandatory term of lifetime postrelease supervision. 2017 WL 2838268, at *6. And Metzger was sentenced to a controlling prison term of 72 months (or 6 years). 2017 WL 2838268, at *2. Terning faced charges carrying terms of imprisonment nearly twice the maximum duration discussed in Metzger. His actual controlling prison sentence is nearly five times as long as Metzger's prison sentence. Terning argues that it was not possible for him to be sentenced to 653 months in prison for either of the crimes charged since he had a low criminal history score. But K.S.A. 2018 Supp. 22- 3210(a)(2) requires a court at a plea hearing to inform the defendant of the "maximum penalty provided by law which may be imposed," not the exact sentence that will be imposed at sentencing. Indeed, a defendant's criminal history score, and thus the nar- rowed sentencing range under the guidelines that he or she is facing, may not be known at the time a defendant enters into a plea agreement. Or it may change between a defendant's plea and a sentencing hearing. For this reason, other Kansas cases addressing motions to withdraw pleas have dealt with similarly calculated maximum penalties—the maximum sentence permitted under the criminal history category A for each charge, regardless of the defendant's actual criminal history score. See Beauclair, 281 Kan. at 232; Metzger, 2017 WL 2838268, at *1, 6; see also K.S.A. 2018 Supp. 22-3210(a)(2) (requiring a court to inform the defendant at a plea hearing "of the maximum penalty provided by law which may be imposed upon acceptance of such plea"). So even though Terning may have known his criminal history, the district court was required to advise him, and did advise him, of the maximum potential penalty authorized for each charge. We also note that when Terning decided to enter his plea, the State had been seeking an upward departure sentence due to the heinous nature of his crimes. Without the plea, Terning could have faced an even longer prison sentence than he was advised of at his

800 COURT OF APPEALS OF KANSAS VOL. 57

___ State v. Terning plea hearing. In other words, although the court did not strictly comply with K.S.A. 22-3210 at the plea hearing by not discussing postrelease supervision, the district court did not abuse its discretion in concluding under these facts that Terning's plea was knowingly and voluntarily entered, and that the purpose of K.S.A. 22- 3210 was therefore achieved. Accord Beauclair, 281 Kan. at 241. Even though Terning was unaware of the lifetime postrelease supervision period when he pleaded, he was informed that he was potentially facing a period of incarceration longer than his natural life, regardless of the imposition of any postrelease term. He nevertheless decided to plead no contest to both charges—and, by doing so, he avoided an upward departure that could have resulted in an even longer prison sentence. Under these circumstances, we find the district court did not abuse its discretion in concluding Terning failed to establish manifest injustice requiring withdrawal of his plea.

Affirmed.

* * *

STANDRIDGE, J., dissenting: I respectfully dissent from the majority's decision to affirm the denial of Aaron Terning's motion to withdraw his plea. A defendant may withdraw a plea after sentencing only to avoid manifest injustice. K.S.A. 2018 Supp. 22-3210(d)(2). Kan- sas courts generally consider "manifest injustice" to mean "'obviously unfair'" or "'shocking to the conscience.'" State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011). In applying that standard to a motion to withdraw a plea, courts consider the Edgar factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). We then review the district court's decision for abuse of discretion, which occurs only when the decision is based on an error of law or fact or when no reasonable person could agree with it. See State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011).

VOL. 57 COURT OF APPEALS OF KANSAS 801

State v. Terning

Terning primarily relies on the third Edgar factor, arguing he should be allowed to withdraw his no contest plea to the charge of rape because it was not "freely, knowingly, voluntarily and intelligently made with the full understanding of the consequences thereof." Specifically, Terning claims neither the court nor his counsel told him (and he was otherwise unaware) before he entered his no contest plea to the charge of rape that he would be subject to lifetime postrelease supervision after conviction on that plea. And Terning testified at the hearing on his motion to withdraw plea that he would not have entered his no contest plea but instead would have pled not guilty and taken the case to trial if he had known about the lifetime postrelease requirement. The question of whether a plea is understandingly made must be addressed in light of the constitutional and statutory rights that attach to a defendant's plea. Edgar, 281 Kan. at 36. To be constitutionally valid, guilty or no contest pleas, and their resulting waiver of rights, must not only be voluntary but must also "'be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.'" 281 Kan. at 36-37 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 [1975]). Constitutional and statutory requirements dictate that a criminal defendant must be informed of the direct consequences of his or her plea before entering a plea. K.S.A. 2018 Supp. 22- 3210(a)(2) (codifying constitutional due process requirement by specifying that in felony cases the district court must inform "the defendant of the consequences of the plea, including . . . the maximum penalty provided by law"). Postrelease supervision is a direct consequence of a plea. State v. Moody, 282 Kan. 181, 194, 144 P.3d 612 (2006). Therefore, the district court was statutorily and constitutionally required to inform Terning that he would be subject to lifetime postrelease supervision if he decided to enter a plea of no contest to the charge of rape. See State v. Barahona, 35 Kan. App. 2d 605, 613, 132 P.3d 959 (2006). Although the majority readily acknowledges the district court failed to adhere to the statutory and constitutional mandate set forth in K.S.A. 2018 Supp. 22-3210(a)(2), it concludes the record as a whole establishes that Terning's plea of no contest to the rape

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___ State v. Terning charge was knowingly and understandingly made with regard to the maximum penalty that could be imposed as a result of his plea. Immediately before reaching this conclusion, the majority cites to Barahona. In that case, Barahona was convicted of robbery and burglary under negotiated guilty pleas. During the first of two plea hearings, the defendant entered a plea of no contest to the robbery charge after the district court advised him that he could potentially serve 31-136 months for a robbery conviction. The district court ultimately imposed a controlling sentence of 36 months for the robbery conviction and 13 months for the burglary conviction, to be followed by a mandatory postrelease supervision period of 24 months. Barahona later filed a motion to withdraw his plea claiming his attorney was ineffective for not advising him of the postrelease supervisory period applicable to his convictions as a result of his plea. Barahona argued his attorney's failure in this regard deprived him of his right to due process of the law. The district court summarily denied the defendant's motion. Barahona appealed. The court framed the issue on appeal as follows:

"The defendant also claims that his counsel was ineffective in failing to advise him of the potential postrelease supervisory period applicable to his convictions for robbery and burglary as a result of his plea. The record supports his contention, as it is silent on the issue of the period of postrelease supervision applicable to the defendant's convictions, except within the journal entry of sentencing." Barahona, 35 Kan. App. 2d at 613.

Relying on the holdings in several federal cases across various jurisdictions, the Barahona court concluded that the defendant was not deprived of his right to due process when his attorney failed to tell him before he entered his plea that he would serve a 24-month term of postrelease supervision. The court reasoned that even if Barahona had served the full 36-month robbery sentence before beginning his 24-month postrelease supervision period, the time served as a result of his guilty plea (50 months) did not exceed the 136-month period of time the court originally told him he could potentially serve before he entered his plea. Barahona, 35 Kan. App. 2d at 614-15. The court held that

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State v. Terning

"due process is not violated by failure to advise a criminal defendant of the applicability of a postrelease supervisory period or mandatory parole, if the sentence assigned to the defendant and any mandatory supervised period following his or her release does not exceed the maximum penalty term the defendant was told at sentencing." Barahona, 35 Kan. App. 2d at 614.

Although citing to it, the majority does not actually apply the Barahona holding to the facts here, primarily because it would be impossible to do so. In Barahona, the court was able to mathematically compare two discrete numbers to determine whether the sentence assigned to the defendant and any mandatory supervised period following his release is less than the maximum penalty term the defendant was told at sentencing. Unlike Barahona, the true total possible term of confinement for a rape conviction at the time Terning entered his plea was not a discrete number—it was life imprisonment. That was because in 2006, the Legislature mandated lifetime postrelease supervision for rape convictions. See K.S.A. 2006 Supp. 22-3717(d)(1)(G), (d)(2)(A). The mandatory period of "lifetime postrelease supervision is undeniably part of a defendant's sentence." State v. Mossman, 294 Kan. 901, 907, 281 P.3d 153 (2012). Even now, if an offender violates the terms of postrelease supervision, that offender may be required to be confined for up to the balance of postrelease. But at the time of Tern- ing's plea, the relevant time to analyze under Brady, if that violation resulted from a new felony conviction, the offender was required to serve the entire balance of the remaining postrelease term, which in Terning's case was a life sentence. See K.S.A. 2007 Supp. 75-5217(c)-(d); Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970) (counsel must inform defendant of possible penalty existing at the time of the plea). In order to deal with this factual distinction, the majority does not (and cannot) compare discrete numbers as the science of hard mathematics requires. Instead, the majority applies a newly developed analytical framework, which provides that due process is not violated by failure to advise a criminal defendant of the applicability of a lifetime postrelease supervisory period if the combined prison sentences assigned to the defendant are not meaningfully different from life in prison. See 57 Kan. App. 2d at 798. Significantly, the majority does not define the term "meaningfully different." As applied here, however, the majority summarily

804 COURT OF APPEALS OF KANSAS VOL. 57

___ State v. Terning finds that advising a 37-year-old Terning at the plea hearing of a maximum penalty of 818 months (up to 653 months on the base crime assuming a criminal history A and up to 165 months on the nonbase crime based on a criminal history I) is not meaningfully different from an actual life sentence. But the majority comes to a different conclusion when analyzing the facts in State v. Metzger, No. 115,056, 2017 WL 2838268 (Kan. App. 2017) (unpublished opinion). There, the majority summarily finds that advising a 20- year-old Metzger at the plea hearing of a maximum penalty of 431 months is meaningfully different from an actual life sentence. I strongly disagree with the majority's adoption of this new analytical framework as doing so will open the door to arbitrary decisions. I believe that system-wide stability and continuity is best maintained when this court consistently follows its logical, tried-and-true analytical framework, applying it to all issues in all cases, regardless of the individual result that might obtain in a particular case. Cf. Leaming v. U.S.D. No. 214, 242 Kan. 743, 761, 750 P.2d 1041 (1988) (Herd, J., dissenting) ("Result-oriented justice is government of men and not of law, directly contrary to the concept of the rule of law."). The better analytical framework is the one set forth in Metz- ger. Before entering no contest pleas to aggravated indecent liberties with a child and indecent liberties with a child, the district court advised Metzger that he would be subject to a maximum penalty of 431 months, which included 48 months of postrelease supervision. At sentencing, the district court imposed concurrent 72- and 32-month prison terms, with 36 months' postrelease supervision. Nearly four years later, the State filed a motion to correct illegal sentence arguing Metzger should have received lifetime postrelease supervision on the aggravated indecent liberties conviction. Like Terning, Metzger filed a motion to withdraw his pleas, which the district court denied. Metzger, 2017 WL 2838268, at *1-2. On appeal, Metzger argued his "'right to due process was violated because he was not informed of the maximum penalties his plea entailed.'" 2017 WL 2838268, at *5. A panel of this court agreed, finding Metzger had demonstrated manifest injustice because he was misinformed about the length of postrelease supervision. The panel found the first and

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State v. Terning third Edgar factors weighed in favor of Metzger: counsel's improper advice was not competent and his plea was not fairly and understandingly made because he was not correctly informed of the actual maximum possible sentence he faced. 2017 WL 2838268, at *7. In its analysis, the Metzger court distinguished Barahona because Metzger's total sentence—life due to lifetime postrelease—exceeded the possible sentence he was told he faced at the time he entered his plea. Although it had found that Metzger's plea was not fairly or understandingly made under the third Edgar factor based on the constitutional and statutory violation, the Metzger court turned to five additional factors set forth in State v. Moses, 280 Kan. 939, 952-54, 127 P.3d 330 (2006), in considering voluntariness:

(1) the reasonable promptness of the defendant's motion to withdraw; (2) the defendant's failure to raise the issue in a prior appeal; (3) prejudice the State would suffer if forced to try the case after a lengthy period of time; (4) the defendant's prior involvement in the criminal justice system; and (5) receipt by the defendant of a favorable plea bargain.

The court found the first and second Moses factors favored Metzger, as he promptly moved to withdraw his plea as soon as he learned he was subject to lifetime postrelease supervision. Next, the State cited no particular prejudice if Metzger's pleas were withdrawn. With respect to the fourth factor, Metzger had prior convictions, but none were for person crimes, so it found the third and fourth factors did not favor either party. And to the fifth factor, it found Metzger obtained a favorable plea bargain, as his charges were substantially reduced. What appeared to tip the scales in favor of finding manifest injustice was Metzger's knowledge that he faced potentially greater adverse consequences if he was allowed to withdraw his plea. Metzger, 2017 WL 2838268, at *8-9. The facts here weigh even more heavily in favor of a finding that Terning's plea was not freely, knowingly, voluntarily, and in-

806 COURT OF APPEALS OF KANSAS VOL. 57

___ State v. Terning telligently made with the full understanding of the maximum penalties. Like Metzger, Terning timely moved to withdraw his plea within one year of his conviction becoming final. And like Metz- ger, neither he, his counsel, nor quite possibly the district court, the State, and his original appellate counsel, was aware he was facing lifetime postrelease, so the issue was not something that could have been raised in his direct appeal. And Terning made clear he would not have entered his plea had he been aware of the lifetime postrelease requirement. Therefore, like Metzger, the first two Moses factors weigh in Terning's favor. Next, there does not appear to be any prejudice to the State beyond what existed in Metzger. The only possible difference between Metzger and Terning's case is that the codefendant in this case may have died. But there is no evidence that testimony would have otherwise been available at the time Terning entered his plea and, even if it was, that it would have been adverse to Terning. Under the fourth Moses factor, Terning, unlike Metzger, had absolutely no criminal history and no experience with the criminal justice system; therefore, this factor weighs in his favor. And finally, regarding the fifth Moses factor, I would find Terning did not receive a favorable plea bargain for purposes of a manifest injustice analysis. In Metzger, the court found the defendant received a favorable plea bargain which, at first, weighed against a finding of manifest injustice: Metzger was charged with four crimes, the State dismissed two of the charges under the terms of the plea agreement, and the court ultimately sentenced Metzger to concurrent sentences on those two convictions. Nevertheless, the court ultimately was persuaded this factor weighed in favor of a finding of manifest injustice based on the undisputed fact that Metzger was advised of a 36-month postrelease supervision term only to have it later increased to a lifetime period of postrelease supervision. In concluding, the court stated that "Metzger makes a valid point that there is a significant difference between a 36- month postrelease supervision term and a lifetime postrelease supervision term." Metzger, 2017 WL 2838268, at *8. On this last Moses factor, the court also was persuaded by Metzger's testimony at the hearing on his motion to withdraw his plea, in which he

VOL. 57 COURT OF APPEALS OF KANSAS 807

State v. Terning stated he had been fully informed of the potentially adverse consequences of withdrawing his pleas and that his decision was voluntary. 2017 WL 2838268, at *8. In exchange for Terning's no contest plea, the State agreed to withdraw its motion for an upward durational departure and to not seek any other type of sentencing enhancement. The State agreed that Terning would be permitted to seek a downward departure as well as any sentence authorized under the guidelines, which would include a request for concurrent sentences. The State did not agree, however, to dismiss either of the pending charges, to join in or stand silent on a request for downward departure, to join in or stand silent on a request for concurrent sentences, or to refrain from asking for a consecutive sentence. And, at the sentencing hearing, the court ultimately ordered Terning to serve the aggravated sentences from the applicable Kansas Sentencing Guide- lines Act grid-box consecutively, meaning that Terning is serving the maximum possible prison sentence permitted by law. Like Metzger, Terning testified at the hearing below that he was aware that if his plea was withdrawn, he faced the same original charges, none of which had been dismissed, and the State would have the same opportunity to seek an upward durational departure as it originally sought in this case. In sum, the uncontroverted facts in this case reflect that the district court failed to advise Terning of the maximum penalty upon his no contest plea, which is a clear statutory violation of K.S.A. 2018 Supp. 22-3210(a)(2) and a constitutional violation of due process of law. Upon application of the factors set forth in Edgar and Moses to the facts of this case, I am persuaded that the balance tips in favor of a finding of manifest injustice under K.S.A. 2018 Supp. 22-3210(d)(2) and would therefore hold the district court erred as a matter of law in its legal conclusion that Terning failed to show the required manifest injustice to withdraw his plea.

808 COURT OF APPEALS OF KANSAS VOL. 57

In re Care & Treatment of Jones

___

No. 120,309

In the Matter of the Care and Treatment of MONTELL W. JONES.

___

SYLLABUS BY THE COURT

1. SEXUALLY VIOLENT PREDATOR ACT—Application of Kansas Rules of Civil Procedure—Exception. In proceedings under the Kansas Sexually Violent Predator Act, the Kansas Rules of Civil Procedure apply unless the Sexually Violent Predator Act specifically provides otherwise.

2. CIVIL PROCEDURE—Motion to Dismiss—When Considered as Motion for Summary Judgment. When a motion to dismiss relies on facts not found in the pleadings, the court must treat it as a motion for summary judgment.

3. SAME—Motion for Summary Judgment. A motion for summary judgment may not be granted when there is admissible evidence in the record supporting each element of the claim of the party opposing summary judgment.

Appeal from Wyandotte District Court; WILLIAM P. MAHONEY, judge. Opinion filed February 7, 2020. Reversed and remanded with directions.

Dwight R. Carswell, assistant solicitor general, and Derek Schmidt, attorney general, for appellant.

Christopher Cuevas, of Kansas City, for appellee.

Before HILL, P.J., LEBEN, J., and WALKER, S.J.

LEBEN, J.: Our rules of civil procedure let a party seek summary judgment—rather than having to go through a trial—when the other side's evidence doesn't prove a key part of their claim. But summary judgment isn't a substitute for a trial; when there's some evidence to support the claim, even if it's weak, we decide the case by hearing both sides' evidence at trial, not by summary judgment. The case before us has some procedural wrinkles to it, but the principle we've just discussed resolves it. The State sought to have Montell Jones committed for treatment as a sexually violent predator and presented an expert witness whose testimony provided probable cause to believe Jones met the required criteria. The court then ordered another evaluation at a state hospital—and a

VOL. 57 COURT OF APPEALS OF KANSAS 809

In re Care & Treatment of Jones different expert, chosen by the state hospital, concluded Jones was not a sexually violent predator. The court then directed that the second expert be brought to testify. And after hearing from him, the court ended the case since this second expert—chosen for this purpose by the State—had found Jones wasn't a sexually violent predator. But that's not how this process—or summary judgment— works. The State is represented here by a prosecutor, not by an expert chosen by a state hospital. And the State had presented an expert whose testimony supported the State's claim. The district court erred by granting summary judgment. We therefore reverse its judgment and send the case back for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Jones was convicted in 2005 of one count of rape after he had sex with a 12-year-old girl. Jones, 18 at the time of the offense, received a 10-year prison sentence. As he was about to complete that sentence, the State filed a petition to commit him at the end of his sentence under the Sex- ually Violent Predator Act. The action was filed on behalf of the State by an assistant attorney general, and the petition she filed asked the court to determine whether there was probable cause to believe Jones was a sexually violent predator subject to civil commitment. The State's petition is authorized by the Kansas Sexually Vi- olent Predator Act. The Act lets the State seek a court order when an inmate convicted of a sexually violent offense is about to be released. If the State shows that the inmate meets criteria for classification as a sexually violent predator, the district court can order that the person remain confined to protect the public while the person receives treatment for any underlying mental disorder. To be subject to civil commitment under the Act, the person must (1) have been convicted or charged with a listed sexually violent offense and (2) suffer from some mental abnormality or personality disorder (3) that "makes the person likely to engage in repeat acts of sexual violence and [have] serious difficulty in controlling such person's dangerous behavior." K.S.A. 2018 Supp. 59-29a02(a).

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In re Care & Treatment of Jones

The petition against Jones alleged that he had been convicted of a sexually violent offense and that he suffered from a mental abnormality or personality disorder that made him likely to engage in repeat acts of sexual violence. The petition designated Dr. Brad- ford Sutherland, a clinical psychologist, as "a State expert" in the case. Along with the petition, the State filed a 15-page report from Dr. Sutherland that recommended Jones' civil commitment because his "risk [of committing a new sexual offense] cannot reasonably be managed in the community." The district court found that the petition alleged that Jones met the statutory criteria for a sexually violent predator subject to civil commitment. The court ordered that Jones be kept in custody on his release from prison and brought to the county jail. The court also appointed an attorney to represent Jones; a different attorney, not appointed by the court, later entered an appearance and took over Jones' representation. Once a judge has determined that the petition shows that probable cause exists to believe that the defendant is a sexually violent predator, Kansas law requires that a hearing be held at which the defendant may "contest probable cause." K.S.A. 2018 Supp. 59- 29a05(b). The probable-cause hearing must take place "[w]ithin 72 hours after a person is taken into custody . . . or as soon as reasonably practicable or agreed upon by the parties." K.S.A. 2018 Supp. 59-29a05(b). In Jones' case, the court held the probable-cause hearing about two months after the petition was filed. Dr. Sutherland gave testimony consistent with his report, and the court found that the State had shown probable cause to believe that Jones was a sexually violent predator under the Act. The next step is that the court orders another mental-health examination of the defendant. That may be done by any profes- sionally qualified person chosen by the court, K.S.A. 2018 Supp. 59-29a05(d), but is usually done at a state hospital. Often, perhaps because of the cases selected for sexually violent predator proceedings, the hospital psychologist or psychiatrist agrees that the defendant meets sexually violent predator criteria. After the defendant gets that report, his attorney usually retains an expert witness who will give contrary testimony, and the case is tried either to a judge or a jury.

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In re Care & Treatment of Jones

In Jones' case, though, an expert hired by the Larned State Hospital, Dr. Mitchell Flesher, concluded that Jones did not meet criteria for designation as a sexually violent predator. Based on Flesher's conclusion, Jones moved to dismiss the case. Faced with an unusual situation, the district court decided to hear from Dr. Flesher. Although Dr. Flesher is in private practice, not a state employee, he often does evaluations like this one for Larned State Hospital under a contract with the State. The district court said that Dr. Flesher had been chosen by the State and found that significant: "[I]f the State's own evaluator is recommending that he's not a predator, then the next step would be release." The court heard testimony from Dr. Flesher, ordered Jones released, and dismissed the case. The State then appealed to our court.

ANALYSIS

The State first argues that the Kansas Sexually Violent Pred- ator Act sets out several specific procedural steps but makes no provision for summary-judgment motions. The State then relies on our court's statements in In re Care & Treatment of Palmer, 46 Kan. App. 2d 805, 265 P.3d 565 (2011), that "[i]f there is to be a motion to dismiss filed, it must be filed before the court's determination of probable cause," 46 Kan. App. 2d at 811, and that "[s]ummary judgment is not available . . . after a probable cause finding." 46 Kan. App. 2d 805, Syl. ¶ 2. If those statements from Palmer are correct—that motions to dismiss or for summary judgment may not be considered after a probable-cause finding—then the district court here shouldn't have granted Jones' motion. We therefore begin our discussion with an explanation of why we do not rely on those statements from Palmer.

Our Prior Decision in Palmer

The Palmer case arose in circumstances quite similar to Jones' case. The only significant difference was that in Palmer, the defendant "waived his right to a probable cause hearing," which we found to be an agreement or stipulation that "there was sufficient evidence to bind him over for trial." 46 Kan. App. 2d at 811. In Palmer, as here, when the defendant was sent for an evaluation at

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In re Care & Treatment of Jones

Larned State Hospital, the evaluator concluded that Palmer didn't meet the requirements for classification as a sexually violent offender. And in Palmer, as here, the defendant then moved to dismiss the cases based on that evaluation. The cases differ in that the Palmer district court had ruled that a motion to dismiss could not be made after the probable-cause finding. So the case had pro- ceeded to a trial, and the jury had found Palmer was a sexually violent offender. 46 Kan. App. 2d at 807-08. On appeal, Palmer argued that his motion to dismiss should have been granted. Our court gave two reasons why the defendant could not get his desired pretrial ruling that he did not qualify as a sexually violent offender. First, we recognized that the State and the defendant each had experts and that those experts would provide conflicting testimony. Although Palmer had waived his probable- cause hearing, the State had expert testimony available to support its position that Palmer was a sexually violent predator. This made the situation inappropriate for summary judgment:

"Obviously, to rule upon such a motion, the trial court would necessarily have to weigh evidence, which a court cannot do when ruling on a motion for summary judgment. We hold the trial court correctly denied the motion and submitted the case to the jury." 46 Kan. App. 2d at 806.

Second, we concluded that motions to dismiss and motions for summary judgment weren't contemplated by the Sexually Violent Predator Act once the district court had found probable cause for a civil commitment. We reasoned that because the Act had a series of procedural steps and time deadlines triggered by that probable- cause finding, motion practice wasn't provided for. 46 Kan. App. 2d at 811-13. In retrospect, our first reason would have been sufficient to resolve the Palmer case. (It also is sufficient to resolve Jones' case, as we will discuss in the next section.) As for the second reason, it has been undercut by a statutory change, later cases, and arguments not made by the parties in Palmer:

 In a statutory change after Palmer, the Legislature changed the Kansas Rules of Evidence to mirror federal standards for challenging expert-opinion testimony. L. 2014, ch. 84, § 2 (amending K.S.A. 60-456). That has

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In re Care & Treatment of Jones

broadened the ability for parties to challenge the reliability of scientific evidence before trial. See Malone, Daub ert in Kansas: Prompting a Fresh Look at the Admissibil- ity of Scientific Evidence, 84 J.K.B.A 22 (October 2015). Such a challenge was made in In re Care & Treatment of Cone, 309 Kan. 321, 435 P.3d 45 (2019), a civil-commitment proceeding under the Sexually Violent Predator Act. Cone moved to exclude tests used by the State's experts as unreliable. 309 Kan. at 322, 325-32; see also In re Care & Treatment of Cone, No. 116,801, 2017 WL 3668891, at *1 (Kan. App. 2017) (unpublished opinion), aff'd 309 Kan. 321. The validity of the tests was contested at an evidentiary hearing; the trial judge ruled the tests were reliable and admissible. Had the district court sustained Cone's motion and found the test results inadmissible, a motion for summary judgment might have been appropriate to determine whether the State had enough other evidence to meet its burden of proof at trial.  In a case decided after Palmer, In re Care & Treatment of Easterberg, 309 Kan. 490, 437 P.3d 964 (2019), several proceedings—including a direct habeas corpus proceed ing before the Kansas Supreme Court—took place after the probable-cause finding but before trial. Our Supreme Court allowed the direct habeas corpus proceeding before it so that the defendant could challenge whether the defendant's conviction qualified for inclusion under the Sex- ually Violent Predator Act. The court held that Easterberg should be allowed to contest whether the conviction qualified—and thus whether he was subject to civil commitment at all—before trial. 309 Kan. at 497. The court determined that a factual issue had to be resolved before that question could be answered and sent the case back for further pretrial proceedings in the district court. Both the separate habeas proceeding before our Supreme Court and the additional hearing in the district court took place after the probable-cause determination had been made. Allow ing these proceedings seems contrary to the reasoning in Palmer; the result in Easterberg suggests that there are no

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In re Care & Treatment of Jones

significant limits on what defenses still may be considered after the probable-cause determination.  Neither party in the Palmer appeal noted a possible defense motion to dismiss the civil-commitment proceeding for violation of the defendant's right to a speedy trial. The defendant has speedy-trial rights in those proceedings, see In re Care & Treatment of Ellison, 305 Kan. 519, Syl. ¶¶ 1-2, 385 P.3d 15 (2016), and might not know at the time of the probable-cause hearing whether the State will cause later delays that would violate those rights. The grounds for a motion to dismiss for failure to provide a speedy trial usually involve dates found in the court's own records, so the issue would be properly raised by a motion to dismiss. Again, that motion couldn't be raised under the Palmer reasoning.  Nor did the parties in Palmer note that a defendant in a civil-commitment case might have a valid legal defense that should keep the case from proceeding. For example, if the State lost at trial in an attempted civil commitment and then brought a new case against the same defendant, the new claim would be barred by the legal doctrine of resjudicata unless circumstances had materially changed. In re Care & Treatment of Sigler, 310 Kan. 688, 700-01, 448 P.3d 368 (2019). A res judicata defense then would be appropriately raised by a motion to dismiss or, if factual matters were involved, a motion for summary judgment. We can think of no reason why that motion should be out of order even if brought after the probable-cause hearing. And that circumstance could easily happen. The probable-cause hearing must take place within 72 hours after a person is taken into custody, and the defendant's attorney might be appointed only shortly before the probable-cause hearing. As an example, a motion to dismiss on res judicata grounds was made after the probable-cause finding had been made in In re Care & Treatment of Sporn, 289 Kan. 681, 682, 215 P.3d 615 (2009). The motion was granted, and the dismissal was affirmed on appeal. 289 Kan. at 689.

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In re Care & Treatment of Jones

All of this suggests that making the sorts of motions usually allowed in civil cases should also be allowed in civil-commitment proceedings under the Sexually Violent Predator Act. Consistent with that suggestion, the Act itself says that the Kansas Rules of Civil Procedure (which are set out in Chapter 60 of the Kansas Statutes Annotated) apply to its proceedings. K.S.A. 2018 Supp. 59-29a04(g) says that "proceedings" under the Act "are civil in nature" and "shall follow the procedures set forth in chapter 60 of the Kansas Statutes Annotated . . . except as expressly provided elsewhere in the Kansas sexually violent predator act." Of course, civil-procedure rules provide for motions to dismiss and motions for summary judgment. See K.S.A. 2018 Supp. 60-212; K.S.A. 2018 Supp. 60-256. And no provision in the Sexually Violent Predator Act expressly provides that those motions not be allowed. Based on these considerations, we conclude that civil-motion practice is available in cases under the Act.

Our Analysis of Jones' Case

Once we apply civil-procedure rules to Jones' motion to dismiss, we can quickly resolve this appeal. Although Jones labeled the motion as one to dismiss, the motion relied on facts not in the pleadings—specifically the expert opinion of Dr. Flesher. When a motion to dismiss relies on facts not found in the pleadings, we treat it as a motion for summary judgment. K.S.A. 2018 Supp. 60- 212(d); Rhoten v. Dickson, 290 Kan. 92, Syl. ¶ 1, 223 P.3d 786 (2010). A motion for summary judgment asks the court to decide the case without holding a trial because none of the relevant facts are in dispute and, based on those facts, the law clearly dictates who should win. See K.S.A. 2018 Supp. 60-256; Black's Law Diction- ary 1218 (11th ed. 2019). In determining whether summary judgment is proper, the court must resolve all facts and inferences in favor of the party opposing summary judgment—here, the State. See Deal v. Bowman, 286 Kan. 853, Syl. ¶ 1, 188 P.3d 941 (2008). Under those standards, summary judgment was improper. The State had expert testimony from Dr. Sutherland supporting its

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In re Care & Treatment of Jones claim that Jones is a sexually violent predator. To prove that claim, the State must show that:

 Jones had been convicted of a sexually violent offense;  Jones suffers from a mental abnormality or personality disorder that makes him likely to engage in repeat acts of sexual violence; and  Jones' mental abnormality or personality disorder makes it seriously difficult for him to control his dangerous behavior. See PIK Civ. 4th 130.20 (2008 Supp.). No one disputes that Jones had been convicted of a sexually violent offense. And Dr. Sutherland had testified in support of each of the other required elements of that claim:  Dr. Sutherland said that Jones had an "exhibitionist disor der" in which he became "aroused by exposing genitals to physically mature individuals," that he had an "antisocial personality disorder" of the "aggressive, sadistic type" with "psychopathy."  After explaining the clinical interview he had done and the testing instruments he had used, Dr. Sutherland said that in his opinion, "Mr. Jones will have serious difficulty controlling his behavior outside of a structured environ ment." Dr. Sutherland said that Jones had a significant hostility toward women and that "there is a good likely hood that he would act out sexually against any female who rejected him." He also said that Jones "derives sexual satisfaction by inflicting emotional distress on women." And he testified that Jones' scores on one of the testing measures Dr. Sutherland used suggested a 45% likelihood of violent recidivism within 5 years and a 69% likelihood of violent recidivism within 12 years.

While Dr. Flesher had a different view, that doesn't make summary judgment appropriate—it merely creates a factual dispute for trial. We simply have a disagreement between experts, the sort of thing that usually gets resolved at trial. Absent a challenge to an expert's qualifications or to the validity of the expert's opinion—challenges not made here—summary judgment is not

VOL. 57 COURT OF APPEALS OF KANSAS 817

In re Care & Treatment of Jones available when one expert's testimony supports each element of a party's claim. So the grant of summary judgment was improper. After all, when the court heard Dr. Sutherland's testimony at the probable- cause hearing, the court found that testimony to support each element of the State's claim. That evidence has not gone away. The district court placed significance on the way Dr. Flesher had been chosen. The court had sent Jones to a state hospital for further evaluation, and the state hospital had contracted with Dr. Flesher to do that evaluation. Because Dr. Flesher was chosen by a state entity, the court essentially made Dr. Flesher's conclusions binding on the State in its role as a party in this case. Nothing in the Kansas Rules of Civil Procedure or in the Sexually Violent Predator Act supported that action. Instead, the Sexually Violent Predator Act authorizes the Kan- sas Attorney General to represent the State in these proceedings. See K.S.A. 2018 Supp. 59-29a04(a). The petition was filed by an assistant attorney general, and that attorney—not a person under contract with the state hospital to do an evaluation—represents the State in this proceeding. As in other civil cases, a party may admit facts in response to a request for admissions. K.S.A. 2018 Supp. 60-236. But that hasn't happened here, and the State isn't bound to accept the opinion of Dr. Flesher. In sum, Jones' motion to dismiss relied on factual evidence not found in the pleadings, so the court should have treated it as a motion for summary judgment. Because there was conflicting evidence on the central issues of the case, summary judgment should have been denied. We therefore reverse the district court's judgment and remand the case for further proceedings.

818 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs

___

No. 120,369

DAVID HENDERSON, Appellant, v. MONTGOMERY COUNTY BOARD OF COMMISSIONERS and DEPUTY MICHAEL GRIMES, Appellees.

___

SYLLABUS BY THE COURT

1. TORTS—Kansas Tort Claims Act—Governmental Liability if Act Caused by Employee Acting within Scope of Employment. The Kansas Tort Claims Act provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment." K.S.A. 75-6103(a). Un- der the Kansas Tort Claims Act, governmental liability is the rule and immunity the exception. The burden is on the governmental entity to establish immunity under one of the statutory exceptions in K.S.A. 75-6104.

2. SAME—Kansas Tort Claims Act—Officer's Decision in This Case within Discretionary Function Exception. Under the circumstances of this case, a law enforcement officer's decision to return fire at a fleeing felon falls within the discretionary function exception in K.S.A. 75-6104(e). That discretion is not defeated by Felony High Risk Vehicle Stop guidelines.

Appeal from Montgomery District Court; DANIEL D. CREITZ, judge. Opin- ion filed February 7, 2020. Affirmed.

W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellant.

Timothy J. Finnerty and Jason M. Janoski, of Wallace Saunders, Chartered, of Wichita, for appellees.

Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.

GARDNER, J: This case illustrates the proverb that "no good deed goes unpunished." When David Henderson gave hitchhiker Alejandro Garcia a ride in his pickup truck, he thought Garcia was just having car trouble. But Garcia was a fugitive who had fled to Kansas after having been involved earlier that day in shooting an Oklahoma police officer. Garcia's two codefendants were cap- tured in Oklahoma, but Garcia made it to Kansas where Hender- son innocently picked him up. Montgomery County Sheriff's Deputy Michael Grimes learned of the situation and followed Henderson in his patrol car.

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Henderson v. Board of Montgomery County Comm'rs

When Henderson eventually stopped his pickup truck to let Garcia out in a rural driveway, Grimes tried to apprehend Garcia. But Garcia got out of Henderson's pickup truck and shot at Grimes. Grimes retreated, fell backwards, and returned fire. One of his bullets hit Henderson in the neck. Garcia escaped. Henderson then sued the Montgomery County, Kansas Com- missioners and Grimes (Appellees) for negligence. In due course, the district court granted summary judgment in favor of the Ap- pellees. It found them not liable under the public duty doctrine, since no special relationship was shown, and found them immune from liability under the discretionary function exception, K.S.A. 75-6104(e). Henderson appeals. Finding the district court properly applied K.S.A. 75-6104(e), we affirm the grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Both parties generally agree with the district court's recitation of the facts, so we adopt that recitation here.

"FACTS

"Grimes, in addition to being a deputy, was a member of the Montgomery County Special Emergency Response Team (SERT). On May 28, 2015, Grimes reported for duty to search for and try to apprehend Garcia. Garcia had fled from Oklahoma after shooting an Oklahoma officer. Garcia's two co-defendants were apprehended in Oklahoma. "Before Grimes got into his patrol vehicle, dispatch announced that Garcia was last seen in a red pickup truck. Grimes was wearing his tactical vest and had his service rifle across his vest. "The Plaintiff was driving his red pickup truck when he gave Garcia a ride. The Plaintiff's red pickup passed Grimes' patrol vehicle, and Grimes saw Garcia in the passenger seat. Due to the heavy dispatch traffic Grimes called dispatch on his personal cell phone requesting backup. Grimes remained on his phone and closely followed the Plaintiff's truck. Grimes never turned on his emergency lights or siren. He did not try to pull over the Plaintiff, and the Plaintiff did not feel that Grimes tried to pull him over. The Plaintiff pulled over in a rural Mont- gomery County driveway to let Garcia out. Grimes planned to wait for backup, parking about 75 feet from the Plaintiff's truck. "Garcia exited the Plaintiff's vehicle and was walking toward the front passenger's side. The Plaintiff's truck was parked between Garcia and Grimes. Grimes exited his vehicle and walked toward the Plaintiff's truck. Grimes commanded, 'Sheriff's Office—Let me see your hands!' Garcia only raised his left hand. The Plaintiff put his hands out the driver's window. Then Garcia dropped

820 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs his left hand and walked to the back of the Plaintiff's truck. Grimes repeated the command. "Garcia pointed a semi-automatic handgun at Grimes and fired. Grimes back-pedaled, tripped, and fell on his back. Grimes heard bullets ricochet off the road near him. Grimes thought he was going to be shot. He laid suppressive fire. If he had not used suppressive fire, Grimes believed that he would have been killed. "The Plaintiff was shot in the neck during the exchange of gunfire between Garcia and Grimes. The Plaintiff filed suit against Grimes and the Montgomery County Board of Commissioners for negligence, claiming either Grimes pro- voked the incident or negligently discharged his firearm."

Appellees moved for summary judgment, arguing:

 The public duty doctrine shielded them from liability because police owe the duty of preserving the peace to the general public, not to any one individual;  Henderson failed to establish the duty element of his negligence claim because he could not show a special relationship between himself and Grimes; and  Appellees were entitled to immunity under K.S.A. 75- 6104(e) of the Kansas Tort Claims Act (KTCA), because Grimes was performing a discretionary function when he injured Henderson.

Henderson responded that Appellees had failed to claim an affirmative defense under K.S.A. 75-6104(d) so they had waived that argument. Henderson also argued that the public duty doctrine under K.S.A. 75-6104(d), even if not waived, still did not apply because Grimes had a special relationship with Henderson, and because the statute impermissibly circumvented our Supreme Court's decision in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), superseded by statute as stated in Woodruff v. City of Ottawa, 263 Kan. 557, Syl. ¶ 8, 951 P.2d 953 (1997). Henderson asserted that Fudge was controlling caselaw. Appellees replied that they were not relying on K.S.A. 75- 6104(d) but only on the common-law public duty doctrine as discussed in Keiswetter v. State, 304 Kan. 362, 373 P.3d 803 (2016). That doctrine generally provides that breach of a legal duty owed to the public at large, such as a law enforcement officer's general duty to preserve the peace, is not actionable. Instead, a plaintiff

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Henderson v. Board of Montgomery County Comm'rs suing the government must show that the governmental entity owed a duty to an individual member of the public. See 304 Kan. at 365. Appellees also argued that the public duty doctrine is not an affirmative defense and is not waivable. The district court granted Appellee's motion for summary judgment, rejecting Henderson's arguments that a special relationship existed between Henderson and Grimes. The district court found:

 Henderson was not in the State's custody or care after Grimes commanded him to put his hands up; and  Grimes' commands or other affirmative acts did not cause Henderson to justifiably rely on Grimes to protect him.

Because the district court found no special relationship, it found Henderson's claim was barred by the public duty doctrine. The district court also held that Henderson failed to provide expert testimony on the issue of duty, as it thought Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), required. Alternatively, the district court held that Appellees were immune from suit under K.S.A. 75-6104(e). The district court explained why it found Grimes was performing a discretionary function when he injured Henderson:

"Here, the Plaintiff's allegations of negligent provocation and negligent dis- charge of a firearm directly challenge Grimes' exercise of discretion. Grimes knew that Garcia had already shot an Oklahoma police officer. Grimes knew that Garcia was a fugitive. Getting out of the car to arrest Garcia, rather than waiting for backup was a discretionary decision. Grimes' decision to not wait in the car while an armed felon fled and possibly went into a rural Montgomery County home was a discretionary decision. Grimes believed that if he did not apprehend Garcia, . . .Garcia could go up the driveway and cause someone in the home great bodily harm. So, Grimes, in his discretion, reasoned that he should exit his patrol car and approach Garcia. "Once Garcia started shooting at Grimes, Grimes testified that if he did not lay down suppressive fire, he believed that he would be shot while lying on the road. These are discretionary decisions Grimes made "with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice. Williams, 54 Kan. App. 2d at 613. The Defendants are also immune from liability pursuant to the discretionary function exemption to the KTCA, K.S.A. 75-6104(e)."

Henderson timely appeals.

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___ Henderson v. Board of Montgomery County Comm'rs

DID THE DISTRICT COURT ERR IN FINDING THE PUBLIC DUTY DOCTRINE BARS HENDERSON'S CLAIMS?

We first address Henderson's claim that the district court erred in applying the pubic duty doctrine.

The public duty doctrine

"[T]he first hurdle that a plaintiff suing a governmental entity in negligence generally must overcome is establishing that the entity owed a duty to the plaintiff individually rather than a duty to the public at large." Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 788, 450 P.3d 330 (Kan. 2019). This public duty doctrine bars a governmental entity's liability unless the plaintiff can show a special relationship that gives rise to a specific duty owed to him or her. Keiswetter, 304 Kan. at 365.

"The mere fact that a governmental entity owes a legal duty to the public at large does not establish that the governmental entity owed a duty to an individual member of the public. See Montgomery v. Saleh, 55 Kan. App. 2d 429, 438-39, 419 P.3d 8 (2018) (quoting Kirk v. City of Shawnee, 27 Kan. App. 2d 946, Syl. ¶ 3, 10 P.3d 27 [2000]). A law enforcement officer's general duty to preserve the peace is one such duty. Accord Mills v. City of Overland Park, 251 Kan. 434, Syl. ¶ 5, 837 P.2d 370 (1992) ('As a general rule, the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large.'); see Commer- cial Union Ins. Co. v. City of Wichita, 217 Kan. 44, 53, 536 P.2d 54 (1975); see also South et al. v. State of Maryland, Use of Pottle, 59 U.S. (18 How.) 396, 402- 03, 15 L. Ed. 433 (1855) ('It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals . . . he is liable for acts of misfeasance or non-feasance to the [injured] party.'). "To warrant an exception to the public duty doctrine, a plaintiff suing a governmental entity must establish either a special relationship or a specific duty owed to the plaintiff individually. See Mills, 251 Kan. 434, Syl. ¶ 5 ('Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.')." Williams, 310 Kan. 775 at 788-89.

A special duty may arise from various sources. See Williams, 310 Kan. at 789. Henderson contends, among other theories, that he was in the State's custody or care at the time of the shooting, thus a special duty existed between Grimes and himself, rendering the public duty doctrine inapplicable.

"Generally, a special duty may exist between a government agency and an injured person, rendering the public duty doctrine inapplicable to their encounter,

VOL. 57 COURT OF APPEALS OF KANSAS 823

Henderson v. Board of Montgomery County Comm'rs when: (1) a special relationship existed between the governmental agency and the wrongdoer (i.e., the wrongdoer was in the State's custody or care); (2) a special relationship existed between the governmental agency and the injured person (i.e., the injured person was in the State's custody or care); or (3) the government agency performed an affirmative act that caused injury or made a specific promise or representation that under the circumstances created a justifiable reliance on the part of the person injured. [Citation omitted.]" Potts v. Board of Leaven- worth County Comm'rs, 39 Kan. App. 2d 71, 81, 176 P.3d 988 (2008).

Henderson argues that he became disabled from exercising any care for his own safety when he stuck his hands out of the window of his pickup truck to comply with Officer Grimes' order, "Let me see your hands." At that point, Henderson contends, his safety rested solely in Grimes' hands, establishing a special relationship between them. See Williams, 310 Kan. at 789 (discussing special relationships set out in Restatement [Second] of Torts §§ 314A, 316-319, and 320 [1964]). The parties raise several thorny procedural issues about the public duty doctrine. These include:

 whether that doctrine has been fully codified in the KTCA or continues to exist at common law;  whether the plaintiff has the burden to prove the existence of a special relationship to avoid application of the public duty doctrine; or  whether the State has the burden to prove the absence of a special relationship to invoke the protection of the public duty doctrine.

But we find it unnecessary to jump into the briar patch and resolve these issues now. As the Kansas Supreme Court has repeatedly done in similar cases, we assume, but do not decide, that a special relationship or individual duty existed, sufficient to avoid the public duty doctrine. See, e.g., Keiswetter, 304 Kan. at 367; Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 (2010). Thus, we proceed as though we agree that Henderson was in the State's custody or care when Henderson complied with Grimes' command to put his hands where Grimes could see them. So we need determine only whether the Appellees' claimed statutory exception to liability—

824 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs the discretionary function exception—applies. If that exception applies, it disposes of this case.

DID THE DISTRICT COURT ERR BY APPLYING THE DISCRETIONARY FUNCTION EXCEPTION OF THE KANSAS TORT CLAIMS ACT?

Henderson contends the district court erred by applying an exception to liability under the KTCA. That Act provides that "each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment." K.S.A. 75-6103(a). Under the KTCA, governmental liability is the rule and immunity the exception. The KTCA provides many exceptions to liability which are set forth in K.S.A. 75-6104. The burden rests on the governmental entity to establish any KTCA exception. Patterson v. Cowley County, Kansas, 307 Kan. 616, 630, 413 P.3d 432 (2018). The district court found K.S.A. 75-6104(e), the discretionary function exception, applied here. Whether a governmental entity is immune from liability under an immunity exception of the KTCA is a matter of law. Accordingly, our review is de novo. Soto, 291 Kan. 73, Syl. ¶ 4. And summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review for summary judgments is de novo. Associated Wholesale Gro- cers, Inc. v. Americold Corp., 261 Kan. 806, 820, 934 P.2d 65 (1997).

Other immunities are irrelevant

We pause to note what is not argued here. First, although Ap- pellees asserted the police protection immunity exception of K.S.A. 75-6104(n) to the district court, they do not rely on that subsection on appeal. That subsection provides immunity for the "failure to provide, or the method of providing, police or fire protection." We have previously found that this subsection codifies the common-law public duty doctrine.

"In K.S.A. 75-6104, the KTCA sets forth a lengthy, nonexclusive list of immunities to the general rule of governmental liability for tortious conduct. The police protection immunity states that a public entity or its employees 'shall not

VOL. 57 COURT OF APPEALS OF KANSAS 825

Henderson v. Board of Montgomery County Comm'rs be liable for damages resulting from failure to provide, or the method of providing, police or fire protection.' K.S.A. 75-6104(n). That section codifies the common-law principle of government immunity known as the public duty doctrine. Hopkins, 237 Kan. at 609-10 (Various immunities in K.S.A. 75-6104, including that for police and fire protection, codify preexisting common-law doctrine.); see Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982). Under that doctrine, governmental entities could not be liable for breach of duties owed the general public as opposed to particular individuals. 231 Kan. at 363 ('[T]he duty of a law enforcement officer to preserve the peace is owed to the public at large, not a particular individual.'); Potts v. Board of Leavenworth County Comm'rs, 39 Kan. App. 2d 71, 80-81, 176 P.3d 988 (2008) (outlining scope of public duty doctrine). Because municipalities provide police protection to the public at large, they could not be sued for the negligent delivery of that service in a particular instance. Robertson, 231 Kan. at 363 ('Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.'); Potts, 39 Kan. App. 2d at 81. For example, a city could not be successfully sued because police officers were inexcusably slow in responding to a call of a home invasion in progress and, as a result, the victim suffered prolonged abuse and serious injuries at the hands of the criminals." Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 290-91, 261 P.3d 943 (2011).

Because Appellees do not argue K.S.A. 75-6104(n), the KTCA immunity modeled on the public duty doctrine, we do not address it. Second, although Henderson devotes a good chunk of his argument to arguing that K.S.A. 75-6104(d) does not apply, Appel- lees have not invoked that exception either. That exception provides immunity for:

"(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence." K.S.A. 75-6104(d).

We have found that this subsection supplies the appropriate tort claim immunity where the adoption or enforcement of agency policies and procedures is directly alleged to give rise to the injury and no duty independent of the challenged policy is shown. This occurred in Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 634, 938 P.2d 1293 (1997). After Jarboe's son was shot by a juvenile who had escaped from a youth residence facility, Jarboe alleged, among other matters, that the County had negligently failed to follow its policy on room checks. The court found

826 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs that even assuming the policy had been violated, the County was immune under K.S.A. 1996 Supp. 75-6104(d) because the County owed no independent duty to the Jarboes to prevent the juvenile from leaving the facility. In contrast, when a plaintiff claimed a jail's policy for monitoring inmates was substandard, leading to an inmate's suicide, but the jail owed a duty to the inmate independent of that policy, K.S.A. 75-6104(d) did not apply. Estate of Belden, 46 Kan. App. 2d at 285, 293.

"K.S.A. 75-6104(d) supplies the appropriate tort claim immunity here, at least as to the jail policies and procedures directly at issue. Those policies—regulating the monitoring of inmates in distress and prohibiting inmates from obscuring the windows in their cells—pertain to the health and safety of those confined in the jail. In turn, K.S.A. 75-6104(d) affords immunity to government entities based on the adoption and enforcement of health and safety policies only if the entities owe no independent duty to the persons protected. As the Kansas courts recognize, governmental bodies maintaining penal facilities owe a freestanding duty to the inmates to act reasonably to provide a safe environment. Accordingly, Brown County secures no refuge in K.S.A. 75-6104(d)." Estate of Belden, 46 Kan. App. 2d at 293.

Because Appellees do not rely on any immunity that subsection (d) may provide, we do not address it further.

The discretionary function exception

The sole exception Appellees invoke is K.S.A. 75-6104(e), the discretionary function exception. Henderson argues that the district court erred by applying this exception.

Has Henderson waived this argument?

Before we can reach the merits of Henderson's argument, we need to resolve a procedural matter—Appellees' assertion that Henderson waived this argument by insufficiently briefing it. Ap- pellees rely on the principle that a point raised incidentally in a brief and not argued further is considered abandoned. Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017). Appellees correctly note that Henderson gives K.S.A. 75- 6104(e) short shrift in his appellate brief. That brief refers to that subsection only twice, summarily stating:

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 "Due to [Felony High Risk Vehicle Stop] FHRS guide lines, exclusions in K.S.A. 75-6104(e) and (n) are neutered by Fudge"; and  "Fudge disposes of any claim under exceptions (e) and (n) due to the [FHRS] guidelines."

Henderson then argues how negligence claims against the government escape the grasp of K.S.A. 75-6104(d) when an independent duty and mandatory guidelines, such as FHRS, are shown. Yet Henderson does not explain why he believes K.S.A. 75- 6104 (e) is neutered by Fudge, or why he believes Fudge remains good law. An argument not supported with pertinent authority is considered waived and abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Henderson's reply brief explains that he intended his argument about the FHRS guidelines to challenge the district court's reliance on K.S.A. 75-6104(e). Henderson was arguing that under the principles outlined in Fudge, the discretionary function exception does not apply when a clearly defined mandatory duty or guideline applies, as he contends FHRS guidelines are. See Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 235, 262 P.3d 336 (2011). Although this issue presents a close call, we decline to find waiver or abandonment here. Henderson has sufficiently, although summarily and somewhat confusingly, argued against the district court's reliance on K.S.A. 75-6104(e). We thus reach the merits of this issue.

Does Fudge make K.S.A. 75-6104(e) inapplicable?

Henderson first contends that K.S.A. 75-6104(e), the discretionary function exception, is inapplicable as a matter of law. That statute provides a "discretionary function" exception to government liability. It immunizes government actors and entities from liability for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved." K.S.A. 75-6104(e).

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___ Henderson v. Board of Montgomery County Comm'rs

Henderson's main argument is that our Supreme Court's decision in Fudge precludes application of this exception to liability, given that Grimes was required to act in accordance with the FHRS guidelines. In Fudge, after a man died as a result of a drunk driver's actions, his widow sued Kansas City and various police officers who had contact with the drunk driver. Our Supreme Court found that because the Kansas City Police Department had a specific standard in its operating procedure manual which detailed mandatory procedures for handling various police situations, including how to deal with intoxicated persons, the officers had no discretion to deviate from those procedures. The manual required the officers to take the intoxicated person into protective custody, yet they had not done so. 239 Kan. at 372-73. The Fudge court held: "Where police officers are subject to a specific, mandatory set of guidelines to use with regard to handling intoxicated persons, the officers and the employing municipality are subject to liability under the Kansas Tort Claims Act for the failure to follow those guidelines." 239 Kan. 369, Syl. ¶ 3. Accordingly, the discretionary function exception—then K.S.A. 1981 Supp. 75- 6104(d)—did not apply. 239 Kan. at 374-75. Fudge was decided in 1986. In 1987, the Legislature swiftly showed its displeasure with Fudge by enacting a new subsection (e), rewording the discretionary function exception previously in (d), and moving it to subsection (e). The statute then read:

"A governmental entity or an employee acting within the scope of the employee's employment shall not be liable by damages resulting from: . . . . "(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons' health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence; "(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” (Emphasis added to show new language.) K.S.A. 1987 Supp. 75-6104; L 1987, ch. 353, § 3.

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In Jarboe, our Supreme Court held that those legislative amendments to the discretionary function exception were enacted to overrule the holding in Fudge:

"The legislative history of K.S.A. 75-6104(d) makes it clear that the 1987 amendment to that statute was intended to not allow the result in Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), to remain as the law in Kansas. Fudge can no longer be relied upon as valid precedent to establish liability as a result of a public employee's failure to follow written personnel policies, unless an independent duty of care is owed to the injured party." 262 Kan. 615, Syl. ¶ 1.

As noted above, Jarboe's parents argued that under Fudge, the Kansas Department of Social and Rehabilitation Services and Sedgwick County employees owed their son a special duty arising from the mandatory policies that may have prevented the juvenile from leaving the premises. But our Supreme Court squarely rejected that argument stating: "Fudge is no longer a decision that can be relied upon." Jarboe, 262 Kan. at 626. Thus, a duty must arise from somewhere other than the bed check policy allegedly violated. Our Supreme Court affirmed the district court's application of K.S.A. 1996 Supp. 75-6104(d) and (e) in Jarboe:

"[I]t is clear to us that fact situations like the one in this case are exactly the type where the Kansas Legislature desired to grant immunity to governmental units. The legislative history makes this clear, and the addition of the present subsection (d) and the new wording of subsection (e) to 75-6104 protects the actions of SRS and Sedgwick County in this case." 262 Kan. at 634.

The court again addressed Fudge, Jarboe, and the effects of the 1987 amendments on the discretionary function exception in Woodruff:

"Fudge was decided in 1986. Kansas courts recognize the rule that a breach of a duty imposed by law is negligence and that damages may be predicated on a violation of a statute if the breach is the proximate cause of the injury or substantially contributes to the injury. The declaration of public policy of whether an action can be brought pursuant to a statute is a function of the legislative branch of our government. Brunett v. Albrecht, 248 Kan. 634, Syl. ¶ 5, 810 P.2d 276 (1991). After Fudge, the legislature made a clear statement that this court had wrongly interpreted the discretionary function exception." 263 Kan. at 566.

Justice Six concurred, writing separately "to counter any inference that the Fudge rationale, as described in Jarboe, 262 Kan. 615,

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___ Henderson v. Board of Montgomery County Comm'rs

Syl. ¶ 1, may remain alive and well. The post-Fudge amendment in K.S.A. 75-6104(d) controls." 263 Kan. at 567 (Six, J., concurring). Because the legislative amendments to K.S.A. 75-6104(d) and (e) superseded Fudge, Henderson's argument that Fudge is still good law fails. Henderson contends that the Legislature has no power to overrule the Kansas Supreme Court in Fudge or other cases. But the Kansas Supreme Court has twice found that its decision in Fudge is no longer alive and well. Woodruff, 263 Kan. at 567. We are duty-bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We find no indication of a departure from Jarboe and Woodruff. Because the legislative amendments superseded Fudge, Fudge is not a decision that we can rely on.

Does an Independent Duty Plus Guidelines Make Appellees Lia- ble?

Despite Henderson's erroneous reliance on Fudge, the thrust of his argument, as we understand it, remains—that no discretionary function immunity exists under subsection (e), as a matter of law, when an independent duty has been shown and specific agency guidelines govern the employee's conduct. Again, we assume the existence of an independent duty here based on a special relationship, as though we had found that Henderson was in the State's custody from the moment Henderson complied with Grimes' command to put his hands up. So our focus turns to whether agency policies required Grimes to act, or to refrain from acting, in specific ways—were they mandatory or, instead, discretionary. Henderson asserts that agency guidelines eliminate discretionary immunity under (e), citing Thomas:

"This court also has repeatedly put emphasis on the mandatory versus permissive character of direction given to the defendant actor. '[W]here there is a "clearly defined mandatory duty or guideline, the discretionary function exception is not applicable."' Soto, 291 Kan. at 80 (quoting Nero, 253 Kan. at 585; and citing Barrett v. U.S.D. No. 259, 272 Kan. at 263; Kansas State Bank & Tr. Co., 249 Kan. at 365). For purposes of the exception, '[a] mandatory guideline can arise from agency directives, case law, or statutes.' Soto, 291 Kan. at 80 (citing

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Henderson v. Board of Montgomery County Comm'rs

Barrett, 272 Kan. at 263; Bolyard, 259 Kan. at 452-54). Such a guideline leaves little to no room for individual decision making, exercise of judgment, or use of skill, and qualifies a defendant's actions as ministerial rather than discretionary. See Nero, 253 Kan. at 593-94 (citing Dougan, 243 Kan. at 322-23) (ministerial act 'performance of some duty involving no discretion' where discretion defined as 'capacity to distinguish between what is right and wrong, lawful and unlawful, or wise or foolish sufficiently to render one amenable and responsible for his acts')." Thomas, 293 Kan. at 235.

Henderson is thus correct that when a "clearly defined mandatory duty or guideline" governs the employee's conduct, the discretionary function exception generally does not apply.

"Generally, the discretionary function exception is inapplicable when there is a '"clearly defined mandatory duty or guideline,"' which can arise from statutes, caselaw, or agency directives. [Soto,] 291 Kan. at 80 (quoting Nero v. Kan- sas State University, 253 Kan. 567, 585, 861 P.2d 768 [1993]). Compare Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984) (the State's duties to confine prisoners and warn the public when they escape were imposed by law and therefore nondiscretionary), with Patterson, 307 Kan. at 638 (discretionary function immunity for road sign decisions barred suit against county when applicable guidelines did not mandate placement of allegedly missing road sign under facts alleged by defendant). But this court has cautioned that '"we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception."' Thomas, 293 Kan. at 236 (quoting Schmidt v. HTG, Inc., 265 Kan. 372, 392, 961 P.2d 677 [1998])." Hill v. State, 310 Kan. 490, 510-11, 448 P.3d 457 (2019).

Henderson then contends that when viewed in the light most favorable to him, Grimes was subject to mandatory guidelines— the FHRS guidelines—throughout his pursuit of Garcia. He argues that the district court erred by finding these guidelines were "only guidelines," which, by implication, were not mandatory.

Did the FHRS Guidelines Apply to Grimes?

The parties dispute whether the FHRS guidelines Henderson relies on applied to Grimes at the time of the event. Appellees cite Grimes' testimony that he could not identify those FHRS guidelines as the same ones he had received 10 years earlier when he attended the Kansas Law Enforcement Training Center. Hender- son counters with Grimes' testimony that he was instructed about the standard for felony high risk vehicle stops during his training there, and that these FHRS guidelines appear to be similar or the

832 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs same as the standard he learned when he was certified. We assume, without finding, that the FHRS guidelines Henderson and his expert rely on did apply to Grimes when he injured Henderson.

Are the Guidelines Mandatory or Permissive?

We thus reach the crucial issue—whether the FHRS guidelines create a clearly defined mandatory duty or guideline rendering the discretionary function exception inapplicable. When all material facts are uncontroverted, "whether an exception of the KTCA applies to grant immunity to a governmental entity is a question of law." Keiswetter, 304 Kan. at 366. The sole disputed fact here is when Garcia got out of Henderson's pickup truck. Grimes testified that when he got out of his patrol car, Gar- cia was already out of Henderson's pickup truck. Grimes then shouted for the first time, "Let me see your hands." The district court credited that view. But Henderson testified that Garcia remained in the pickup truck until the second time Grimes shouted, "Let me see your hands," as Grimes was approaching the pickup truck. Yet Henderson does not contend that this factual dispute creates a genuine issue of material fact precluding summary judgment. The material facts here are undisputed. The term "discretionary function or duty" is not defined in the KTCA, so our courts look "foremost to the nature and quality of the discretion exercised" to determine whether a function or duty is discretionary. Soto, 291 Kan. at 79. The question of whether discretionary function immunity applies is highly contextual. Wil- liams, 450 P.3d at 346. The mere application of some judgment is not enough, since judgment is used in almost every human endeavor. Soto, 291 Kan. at 79. Discretionary acts may involve policy-making or require some kind of expertise. Thomas, 293 Kan. at 234. On the other hand, ministerial decisions require very little expertise or decision-making. 293 Kan. at 235. Although Kansas cases may state the narrow view that the discretionary function is limited to policy-oriented decisions, they apply the broader view that the discretionary function encompasses decisions that are not ministerial, as Williams recently noted. Williams, 450 P.3d at 345. We believe that broader view adheres more closely to the plain

VOL. 57 COURT OF APPEALS OF KANSAS 833

Henderson v. Board of Montgomery County Comm'rs language of the statute which immunizes the government from liability for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty." K.S.A. 75-6104(e). With that general overview of the law, we examine the guidelines that Henderson asserts preclude Grimes' exercise of discretion. The first page of the FHRS guidelines affords officers the discretion to modify the procedures when they find it necessary. The introductory "Definition of a High Risk Stop" section states that the guidelines are general guidelines only that the officers may need to modify on a case-by-case basis:

"When a police officer has a reasonable belief that a motor vehicle to be stopped contains an individual(s) that fall into this category the officer must employ a set of tactics substantially different from those used in a low/unknown risk stop. The officer's reasonable belief can be based on the officer's observations, official communications (radio broadcast, etc.) and other sources of reliable information (reliable informant, civilian witness). You should consider the procedure outlined here as a general guideline only. You may at times find it necessary to modify these procedures in order to accommodate your particular and unique situation. If you are forced to modify these procedures, think before you act and use logic." (Emphasis added.)

The FHRS guidelines thus broadly describe an officer's actions in this kind of stop as highly discretionary. Henderson recognizes that the FHRS guidelines are not set in stone, but he still argues that they required Grimes to keep his distance from Henderson's vehicle and to wait for backup before approaching Garcia—an armed suspect. Henderson alleges that Grimes negligently followed Garcia too closely, provoking Garcia to force Henderson to stop driving, and provoking Garcia to fire at Grimes. True, the guidelines say to "[m]aintain a safe surveillance distance." And Grimes may not have done that, as it is uncontroverted that he closely followed the suspect's car before it stopped. But Henderson fails to point to any causal connection between Grimes' close following of Henderson's pickup truck before it stopped and Henderson's injury. The district court correctly rejected this "provocation" theory as inconsistent with negligence principles. It is the stop and the events that followed the stop that provide any basis for liability. Henderson admits that when he stopped his

834 COURT OF APPEALS OF KANSAS VOL. 57

___ Henderson v. Board of Montgomery County Comm'rs pickup truck, without Grimes having used his emergency lights or siren, Grimes stopped roughly 75 feet away. But this distance did not violate the FHRS distance guidelines, which state: "Depending on the location you want to be a minimum of 25' to 35' (1 ½ - 2 ½ car lengths behind the suspect's vehicle when you stop. Remembering that distance is our ally, the more distance, the safer you will be." And that paragraph concludes by saying: "Remember to use your best judgment for the situation you are in." So this guideline, which Grimes complied with, leaves some discretion to the officers. Henderson's primary claim is that Grimes was negligent by not waiting for backup to arrive. But the guidelines do not require Grimes to do so. Instead, the guidelines "recommend[] that a minimum of three officers are needed to effectively perform a High Risk Stop." (Emphasis added.) And that same paragraph notes that a lone officer could be forced to make the stop without backup, acknowledging the flexibility of the recommendation:

"If a lone officer is forced to make the stop then he should wait until additional officers arrive before initiating any further tactics. The officer will want to contain and isolate the suspect(s) in the vehicle until backup arrives. Your Verbal Commands will establish contact and control over the suspects."

And even this guideline does not dictate what a lone officer must do in a felony high risk vehicle stop—it merely states what he should do. As our courts have repeatedly held, the word should is less of an imperative than must or will. That word is advisory, not compulsory. See State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014); State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994).

"Unlike the words 'must,' 'shall,' and 'will,' the word 'should' does not express a mandatory, unyielding duty or obligation; instead, it merely denotes the proper course of action and encourages following the advised path." State v. Allen, 52 Kan. App. 2d 729, Syl. ¶ 5, 372 P.3d 432 (2016).

These and other guideline provisions support the district court's factual finding that the FHRS guidelines are "only guidelines." They do not dictate the specific actions Grimes was required to take throughout the stop. Henderson's expert appeared to concede as much in testifying that the FHRS guidelines establish "best practices" for officers.

VOL. 57 COURT OF APPEALS OF KANSAS 835

Henderson v. Board of Montgomery County Comm'rs

Discretionary function immunity under the KTCA comes into play when a government actor makes a choice among discretionary options in addressing a given set of circumstances.

"Discretion implies the exercise of discriminating judgment within the bounds of reason. Sanford v. Smith, 11 Cal. App. 3d 991, 1000, 90 Cal. Rptr. 256 (1970). It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and that action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice." Hopkins, 237 Kan. at 610.

Grimes made such choices here—those choices led to Hender- son's injury. Grimes did not know how far away backup was or when they would arrive. He could have chosen to remain in his patrol car until backup arrived, but that would have permitted Garcia's likely escape and potential injury of others. And Grimes could have chosen not to return suppressive fire while lying on his back, on the ground, in plain view of the fleeing felon shooting at him, but that would have meant the certain sacrifice of his own safety and the potential sacrifice of his own life. Grimes understood that serious consequences would flow from whatever decision he made. His decisions reflect a course of conduct grounded in legitimate options requiring an exercise of reasonable judgment to select one option over the others. See Hesler v. Osawatomie State Hospital, 266 Kan. 616, 633, 971 P.2d 1169 (1999). These are precisely the kind of decisions that the Legislature intended to place beyond judicial review. Because this kind of stop necessarily involves high risk, a myriad of situations, and rapidly changing circumstances, the procedural guidelines for these stops permit a broad range of discretion. The FHRS guidelines leave room for individual decision making, exercise of judgment, and use of skill. They do not create a clearly defined mandatory duty or guideline rendering the discretionary function exception inapplicable. Because Hender- son's negligence claims arise from Grimes' discretionary acts, the district court properly found that Appellees are protected from liability by K.S.A. 75-6104(e). In light of this ruling, Henderson's other issues raised on appeal are moot. Affirmed.

836 COURT OF APPEALS OF KANSAS VOL. 57

State v. Roberts

___

No. 120,377

STATE OF KANSAS, Appellee, v. TAYLOR R. ROBERTS, Appellant.

___

SYLLABUS BY THE COURT

CRIMINAL LAW—Sentencing—Restitution—Court Must Establish Payment Plan. K.S.A. 2018 Supp. 21-6604(b)(2) refers to a "plan established by the court for payment of restitution." That language does not merely refer to a court's order of an amount of restitution but shows legislative intent that the court establish a payment plan when it orders restitution.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opin- ion filed February 21, 2020. Vacated and remanded with directions.

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

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.

GARDNER, J.: In May 2018, Taylor R. Roberts pleaded guilty to eight counts of burglary and two counts of theft. The district court sentenced her to 42 months in prison, stayed the sentence, and then granted her 24 months of probation. As part of her plea agreement, Roberts agreed to pay restitution. After a restitution hearing, the district court ordered Roberts to pay $50,407.86 in restitution, jointly and severally with her codefendant. The journal entry of Roberts' sentencing orders her to pay $50,407.86 to the district court, lists the recipients and amounts the district court shall then pay out, and orders Roberts jointly and severally liable for all restitution with her codefendant. One special condition of Roberts' probation is that she "pay restitution as directed." But the district court did not tell Roberts any manner of payment or establish a payment plan for that restitution. Roberts timely appeals, claiming that the district court's failure to establish a payment plan for her restitution renders her sentence illegal. Based on the clear statutory language of K.S.A. 2018 Supp. 21-6604(b)(2), we agree and remand for correction of her sentence.

VOL. 57 COURT OF APPEALS OF KANSAS 837

State v. Roberts

DID THE DISTRICT COURT ILLEGALLY SENTENCE ROBERTS BY FAILING TO ESTABLISH A PAYMENT PLAN WHEN IT ORDERED RESTITUTION?

The sole issue on appeal is whether Roberts' sentence is illegal because the district court did not order a payment plan for her restitution. She interprets K.S.A. 2018 Supp. 21-6604(b) to require a district court set a payment plan when ordering restitution, rather than simply ordering a total restitution amount. She asks this court to vacate her restitution order and remand for resentencing. Be- cause she asks us to interpret a sentencing statute and presents a question of law, our standard of review is unlimited. State v. War- ren, 307 Kan. 609, 612, 412 P.3d 993 (2018).

Analysis

Under K.S.A. 2018 Supp. 22-3504(3), an illegal sentence includes a sentence that "does not conform to the applicable statutory provision, either in character or punishment." Roberts invokes this provision. The touchstone of statutory interpretation is the intent of the Legislature as expressed in the statute. See State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). We must therefore first try to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). 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 not readily found in its words. 303 Kan. at 813. Additionally, when examining statutes to determine legislative intent, we must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Keel, 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015). Roberts argues her restitution order at sentencing was illegal because it did not conform to K.S.A. 2018 Supp. 21-6604(b)—the statute that governs a court's order of restitution. She contends the plain language of the statute requires the district court to establish a payment plan when it orders restitution:

838 COURT OF APPEALS OF KANSAS VOL. 57

State v. Roberts

"(b)(1) In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable. . . . If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor." "(2) If the court orders restitution, the restitution shall be a judgment against the defendant which may be collected by the court by garnishment or other execution as on judgments in civil cases. If, after 60 days from the date restitution is ordered by the court, a defendant is found to be in noncompliance with the plan established by the court for payment of restitution, . . . the court shall assign an agent procured by the attorney general . . . to collect the restitution on behalf of the victim." K.S.A. 2018 Supp. 21-6604(b) (Emphases added.)

Roberts' argument is threefold. First, she emphasizes "plan of restitution" in K.S.A. 2018 Supp. 21-6604(b)(1). An order of restitution is not a plan of restitution. She argues that for a district court to evaluate whether a "plan of restitution" is unworkable, there must first be a plan to evaluate. Thus, instead of simply ordering a total restitution amount, the district court has to establish some payment plan with any restitution order. Because the district court failed to set a payment plan, its restitution order was illegal. This argument has some logical appeal. But we find Roberts' second argument more persuasive. She focuses on the plain language of K.S.A. 2018 Supp. 21-6604(b)(2) which refers to "the plan established by the court for payment of restitution." That subsection applies only when a defendant, after 60 days from the date the court orders restitution, "is found to be in noncompliance with the plan established by the court for payment of restitution." So that subsection does not apply to Roberts, who is not alleged to be noncompliant. Yet we agree that the subsection's language clearly shows legislative intent that the court establish a plan for payment of restitution. The language of subsection (b)(2) ("the plan established by the court for payment of restitution") is distinctively different from the language the Legis- lature used in subsection (b)(1) ("a plan of restitution") (an "order . . . to pay restitution"). We presume that the Legislature intends a different meaning when it uses different language in the same connection within a statute. Boatright v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). This language assumes

VOL. 57 COURT OF APPEALS OF KANSAS 839

State v. Roberts that the district court has established a plan "for payment of restitution" and looks for compliance within 60 days after the date the court orders restitution. A court's order of an amount of restitution does not constitute a "plan established by the court for payment of restitution." For any payment plan of restitution to be effective, and for a court to determine noncompliance, as contemplated in K.S.A. 2018 Supp. 21-6604(b)(2), the court needs to establish a payment plan when it orders restitution. And defendants need to know at the time of sentencing what they need to do to comply with the restitution ordered as part of their sentence—is the full amount due immediately, is it payable in monthly installments, is it payable in kind, and so on. Third, Roberts argues that K.S.A. 2018 Supp. 22-3717(n) supports her interpretation.

"If the court which sentenced an inmate specified at the time of sentencing the amount and the recipient of any restitution ordered as a condition of parole or postrelease supervision, the prisoner review board shall order as a condition of parole or postrelease supervision that the inmate pay restitution in the amount and manner provided in the journal entry unless the board finds compelling circumstances which would render a plan of restitution unworkable." (Emphasis added.) K.S.A. 2018 Supp. 22-3717(n).

Roberts focuses on the requirement that the Kansas Prisoner Review Board order payment of restitution "in the amount and manner provided in the journal entry." K.S.A. 2018 Supp. 22- 3717(n) (Emphasis added.). Unless a district court orders otherwise at sentencing, an imprisoned defendant begins to make restitution payments after being released from prison. State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014). K.S.A. 2018 Supp. 22-3717(n) applies at that time. This statute grants the Kansas Prisoner Review Board discretion to decrease or eliminate the amount of restitution if it finds "compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2018 Supp. 22-3717(n); see also K.S.A. 2018 Supp. 22-3718 (board may set aside restitution as condition of release). This statute does not apply here because the district court placed Roberts on probation and stayed her sentencing of imprisonment. Yet Roberts shows that the clear language of this statute

840 COURT OF APPEALS OF KANSAS VOL. 57

State v. Roberts refers not only to the amount of restitution but also to "the manner" for the inmate to pay restitution provided in the journal entry. Roberts suggests that "the manner" must be a payment plan. But "the manner" could merely refer to the requirement that the defendant pay "to the district court," as ordered in Roberts' journal entry. Nothing suggests that "the manner" necessarily refers to a "plan established by the court for payment of restitution," as does K.S.A. 2018 Supp. 21-6604(b)(2). We find little support for Rob- erts' position in K.S.A. 2018 Supp. 22-3717(n). The State offers no other meaning for the statutory language Roberts relies on. In fact, it ignores the plain language of subsection (b)(2) which refers to "the plan established by the court for payment of restitution." Instead, it offers broader responses. First, the State contends that had the Legislature intended for the court to establish a payment plan, it would have said so specifically, as it did in the Board of Indigents' Defense Services provision in K.S.A. 2018 Supp. 21-6604(i). That statute requires the court to order the defendant to reimburse the state general fund for expenditures by the Board of Indigents' Defense Services to provide counsel. It then specifies what the court must consider in determining the amount and method of payment: "In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose." K.S.A. 2018 Supp. 21-6604(i). The State then cites cases requiring specificity in relation to restitution, such as the requirement of a causal link between defendant's crimes and the victim's damages, citing State v. Alcala, 301 Kan. 832, 837, 348 P.3d 570 (2015); and the requirement that the amount of restitution be shown by reliable evidence, citing State v. Hall, 297 Kan. 709, 713-14, 304 P.3d 677 (2013). Perhaps the State's comparative approach could persuade us if were there no statutory language on point. But this approach fails to show us that the plain language the Legislature used in K.S.A. 2018 Supp. 21-6604(b) is insufficiently specific to show its intent that the court establish not only an order for an amount of restitution, but also a plan for "payment of restitution."

VOL. 57 COURT OF APPEALS OF KANSAS 841

State v. Roberts

Second, the State relies on State v. Garza, No. 118,840, 2019 WL 1412444 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. __ (December 19, 2019). There, a panel of this court held that the plain language of K.S.A. 2018 Supp. 21-6604(b) requires a district court to order restitution but does not require the district court to establish a payment plan. It found that to require the district court order a payment plan would be "to read something into the statute that is not readily found in its words." 2019 WL 1412444, at *5. The State argues that like the defendant in Garza, Roberts focuses on the use of the term "plan" as a foundation for her claim. But the State mischaracterizes Roberts' claim. Roberts does not focus on the phrase "plan of restitution" in subsection (b)(1), as the defendant in Garza apparently did, but on the phrase "the plan established by the court for payment of restitution" in subsection (b)(2). Garza fails to address that language. We are not persuaded by Garza for that reason. Third, the State cites State v. Herron, 50 Kan. App. 2d 1058, 1061, 335 P.3d 1211 (2014) as support for its position that statutes show only the Legislature's intent to mandate the imposition of a restitution figure. But to the contrary, Herron makes Roberts' point, holding "[t]he district court erred here by adopting only a total restitution amount while providing no plan—workable or otherwise—for paying it." 50 Kan. App. 2d at 1066. Fourth, the State argues that requiring a payment plan for restitution would depart from the law that the defendant has the burden to show evidence of his or her inability to pay. But we do not agree that our holding shifts any burden from a defendant. The district court finds a total amount of restitution, establishes a payment plan, tells defendant of that plan, and then the defendant must show "compelling circumstances" that render the plan unworkable. See State v. Meeks, 307 Kan. 813, 816, 415 P.3d 400 (2018); State v. King, 288 Kan. 333, 356-57, 204 P.3d 585 (2009). Fifth, the State notes that for those sentenced to prison, it is the Kansas Prisoner Review Board, and not the sentencing courts, that set conditions of parole such as restitution. See Alderson, 299 Kan. at 151. The State suggests that a payment plan established

842 COURT OF APPEALS OF KANSAS VOL. 57

State v. Roberts by the court would intrude on that procedure and may be unenforceable. But this poses no issue here, as Roberts is not imprisoned. Even were Roberts imprisoned, however, the statutory scheme allows restitution in addition to other sentencing terms. See K.S.A. 2018 Supp. 21-6604(b)(1). So a court can have the Kansas Department of Corrections collect restitution from the defendant's prison account while a defendant is incarcerated, if its sentencing order is unambiguous. See Alderson, 299 Kan. at 151 ("If the district court intended that Alderson be subject to the col- lection of restitution while he is incarcerated, it was required to declare that intention unambiguously."). True, when a defendant is released from prison, it is the role of the Kansas Prisoner Review Board, not the courts, to set conditions of parole. Yet "[i]f the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole, conditional release or postrelease supervision." K.S.A. 2018 Supp. 21-6604(e). In that event, a restitution judgment may serve as "an advisory calculation of damages for the benefit of the Kansas Prisoner Review Board." Alderson, 299 Kan. at 151. Cf. Meeks, 307 Kan. at 819 (finding if restitution is ordered as a condition of postrelease supervision, as opposed to probation, a restitution plan is "subject to change by the prisoner review board after the defendant's release from incarceration."). We find no greater intrusion if the district court also establishes plan for payment of restitution, as subsection (b)(2) contemplates. Sixth, the State relies on the rule that courts should construe statutes to avoid unreasonable results. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014). It then suggests that requiring district courts to establish a payment plan for restitution is necessarily unreasonable:

"Saddling sentencing courts with the obligation to craft a detailed restitution plan, sometimes years in advance, in the absence of factors that would clarify a defendant's financial resources, employability, and competing financial obligations, is unreasonable."

VOL. 57 COURT OF APPEALS OF KANSAS 843

State v. Roberts

But when, as here, no ambiguity appears in the statutory language, a court does 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." Keel, 302 Kan. 560, Syl. ¶ 6. So the rule of construction the State relies on does not apply. And despite the alleged unreasonableness, cases reflect that some district courts already establish payment plans for restitution. See, e.g., State v. Hambright, 53 Kan. App. 2d 355, 366-67, 388 P.3d 613 (2017) (district court ordered defendant to pay $60,000 in restitution at a rate of $500 per month), rev'd on other grounds 310 Kan. 408, 447 P.3d 972 (2019); State v. Martin, No. 115,651, 2017 WL 2713042, at *2 (Kan. App. 2017) (district court ordered defendant to pay $10,800 in restitution at a rate of $300 per month), rev’d and remanded 308 Kan. 1343, 429 P.3d 896 (2018); State v. Orcutt, No. 101,395, 2010 WL 348281, at *5-6 (Kan. App. 2010) (unpublished opinion) (district court ordered defendant to pay $7,500 in restitution at a rate of $625 per month). We are nonetheless sympathetic to the practical challenges inherent in our finding that the district court must establish a plan for the payment of restitution, as K.S.A. 2018 Supp. 21- 6604(b)(2) requires. But a payment plan may be as simple as ordering a defendant to make the full restitution payment immediately or ordering monthly installments, as did the cases above. See also United States v. Martinez, 812 F.3d 1200, 1203 (10th Cir. 2015) (ordering restitution in monthly installments of 25% of defendant's net disposable income). And establishing a payment plan would necessarily be simple because that plan, like the amount of restitution, would be done without consideration of a defendant's ability to pay. The Kansas Supreme Court recently recognized that Kansas is among the mi- nority of states that do not consider a defendant's ability to pay before setting a restitution amount:

"The Model Sentencing and Corrections Act includes a model restitution statute that directs a court to consider 'the financial resources and future ability of the offender to pay or perform' when ordering restitution. Model Sentencing and Corrections Act § 3-601, 10 U.L.A. 443 (2001). In a majority of states, courts

844 COURT OF APPEALS OF KANSAS VOL. 57

State v. Roberts follow such a model, considering a defendant's circumstances and his or her ability to pay before setting a restitution amount." Meeks, 307 Kan. at 820 (citing statutes).

Yet in Meeks, the Kansas Supreme Court found Kansas' method of figuring restitution without considering a defendant's ability to pay, then considering such evidence if the defendant challenges the plan as unworkable, "consistent with" the methods used across the country. 307 Kan. at 820.

"[U]nworkability should be evaluated on a case-by-case basis. As we stated in Goeller, a defendant who argues that restitution is unworkable must come forward with evidence of his or her inability to pay. [Citation omitted.] District courts should use this flexible guideline to evaluate each defendant's unique circumstances before deciding whether the defendant has shown a plan would be unworkable. Some of the factors relevant to the court's inquiry will be the defendant's income, present and future earning capacity, living expenses, debts and financial obligations, and dependents. In some circumstances, the amount of time it will take a defendant to pay off a restitution order will also be relevant, especially if the defendant is subject to probation until the restitution is paid in full. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty. See State v. Hunziker, 274 Kan. 655, Syl. ¶ 4, 56 P.3d 202 (2002)." 307 Kan. at 820.

We do not agree that requiring the district court to order a total amount of restitution, to establish a payment plan for that restitution, to tell the defendant of that payment plan, and then permitting a defendant to show the plan is unworkable is necessarily unreasonable. But if so, it is to the Legislature, and not this court, that the State must direct its concern. "[C]ourts 'are not free to act on . . . [their own] view of wise public policy' in matters governed by legislation. Courts should instead 'leave the guidance of public policy through statutes to the legislature.' [Citations omitted.]" In re Marriage of Hall, 295 Kan. 776, 784, 286 P.3d 210 (2012). The language of K.S.A. 2018 Supp. 21-6604(b)(2) is direct and unambiguous—the court must establish a plan "for payment of restitution" ("If . . . a defendant is found to be in noncompliance with the plan established by the court for payment of restitution . . . ." [Emphasis added.]). Restitution is part of a sentence. State v. Johnson, 309 Kan. 992, 996, 441 P.3d 1036 (2019). Or- ders of restitution and payment plans should be clear so defendants subject to them know what is expected of them. Having the

VOL. 57 COURT OF APPEALS OF KANSAS 845

State v. Roberts court establish a plan "for payment of restitution" and informing defendants of that plan will help defendants understand what the court expects of them. "If the defendant is ordered to pay full or partial restitution, the period [of probation] may be continued as long as the amount of restitution ordered has not been paid." K.S.A. 2018 Supp. 21-6608(c)(7). And the district court need not hold a hearing before extending probation for nonpayment of restitution. State v. Gordon, 275 Kan. 393, 402-07, 66 P.3d 903 (2003) (concluding that a court could extend probation for unpaid restitution without a hearing). We note that the statutory language of K.S.A. 2018 Supp. 21- 6604(b) imposes upon "the court" the responsibility for making a plan for the payment of restitution. It leaves no room for delegation of that responsibility to another, such as a probation officer. In similar contexts, we have found error when a sentencing judge has tried to delegate its statutory authority to another. See, e.g., Van Ross v. State, No. 105,031, 2011 WL 4906846 (Kan. App. 2011) (unpublished opinion) (finding reversible error when at sentencing district court did not assess specific attorney fees against defendant to repay the State for his court-appointed counsel, as K.S.A. 21-4603d(i) required, but instead tried to delegate its authority to assess the amount and manner of payment of attorney fees to Kansas Department of Corrections); State v. Lindsay, No. 103,764, 2011 WL 1377007 (Kan. App. 2011) (unpublished opinion) (finding improper delegation of court's authority to determine the sentence when the judge directed prosecutor to put the "maximum" number for length of probation in journal entry); Cf. United States v. Prouty, 303 F.3d 1249, 1254-55 (11th Cir. 2002) (holding that 18 U.S.C. § 3664 requires district courts to set the sched- ule for restitution payments so courts cannot delegate this authority to probation officers). We vacate Roberts' restitution order and remand the case to the district court to correct her sentence by establishing a plan for payment of restitution.

846 COURT OF APPEALS OF KANSAS VOL. 57

State v. Henry

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No. 119,895

STATE OF KANSAS, Appellee, v. SAMUEL HENRY, Appellant.

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SYLLABUS BY THE COURT

1. CRIMINAL LAW—Series of Larcenous Acts May Constitute Single Lar- ceny—Requirements. A series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme.

2. SAME—Single Larceny Doctrine—Rule of Evidence. The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme.

3. SAME—Single Larceny Doctrine—Two Elements. The two key elements of the single larceny doctrine are: (1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan and (2) whether the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury.

4. SAME—Single Larceny Doctrine—Multiple Instances of Misdemeanor or Felony Takings. The single larceny doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony.

5. SAME—Sentencing—Restitution—Court Shall Order Restitution unless Plan Unworkable. K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.

6. SAME—Sentencing—Restitution—Defendant's Burden of Proof if Plan Unworkable. Restitution is the rule and a finding that restitution is unworkable is the exception. The defendant bears the burden of coming forward with evidence of compelling circumstances that render the restitution plan unworkable.

7. SAME—Sentencing—Restitution—Workability of Restitution Plan Evalu- ated on Case-by-Case Basis. K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." Courts are to evaluate the workability of a restitution

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State v. Henry

plan on a case-by-case basis. Some of the factors relevant to the court's inquiry will be the defendant's income, present and future earning capacity, living expenses, debts and financial obligations, and dependents. In some circumstances, the amount of time it will take a defendant to pay off a restitution order will also be relevant, especially if the defendant is subject to probation until the restitution is paid in full. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation to the victim and deterrence and rehabilitation of the guilty.

8. CRIMINAL LAW—Restitution—Order of Restitution Allows Probation to Continue until Paid. If a defendant is ordered to pay full or partial restitution, K.S.A. 2019 Supp. 21-6608(c)(7) specifically allows for probation to be continued indefinitely as long as the amount of restitution ordered has not been paid.

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed February 28, 2020. Affirmed.

Meryl Carver-Allmond and Sam Schirer, of Kansas Capital Appellate De- fender Office, for appellant.

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

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

POWELL, J.: A jury convicted Samuel Henry of one count of felony theft after he stole money from QuikTrip deposits on 12 different occasions during his employment as an armored truck driver. The district court sentenced Henry to 60 months' probation and ordered he pay $78,315 in restitution. On appeal, Henry claims the single larceny doctrine, which allows multiple takings to be charged as a single crime when committed as part of single criminal impulse or plan, was inapplicable to his case and the State erroneously charged him with a single higher severity level theft instead of 12 lower severity level thefts. As a result, he argues insufficient evidence supports his conviction because each of his individual takings failed to meet the monetary threshold element of the felony theft charged, necessitating the reversal of his conviction. Henry also argues his restitution is unworkable. For reasons we more fully explain below, we disagree with Henry's arguments and find sufficient evidence supports Henry's theft conviction. We also hold the district court's restitution order is not unworkable. Thus, we affirm Henry's conviction and sentence.

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State v. Henry

FACTUAL AND PROCEDURAL BACKGROUND

In May 2016, QuikTrip's corporate office discovered it was missing $78,315. Auditing established that this money was missing due to shortages between the currency deposited in the safes of various Wichita, Kansas, QuikTrip locations and the currency transferred to QuikTrip's corporate bank account. QuikTrip conducted an internal investigation and concluded that no QuikTrip employees took the missing money. So, QuikTrip contacted Gar- daWorld—the armored truck company contracted to transport money from various QuikTrip locations to the bank to be deposited—to file a claim for the missing deposit amounts. GardaWorld's internal investigation revealed that Henry, an armored truck driver for the company, was responsible for the missing funds. The investigation exposed 12 occasions between April 16, 2016, and May 21, 2016, when the money deposited into the bank was less than the money placed in the safes at various QuikTrip locations. The specific dates and discrepancies are as follows:

Date Amount Missing Store Stolen From April 16, 2016 $2,182 315 April 20, 2016 $920 396 April 25, 2016 $3,110 396 April 27, 2016 $3,111 368 April 30, 2016 $7,091 349 May 2, 2016 $3,930 396 May 2, 2016 $4,230 315 May 4, 2016 $7,911 396 May 7, 2016 $7,830 349 May 7, 2016 $9,070 343 May 14, 2016 $15,410 349 May 21, 2016 $13,520 349 Total Missing: $78,315

It was initially unclear how Henry had taken the money because the cash arrived at the bank in sealed, tamper-proof Quik- Trip deposit bags. However, it was later discovered that multiple

VOL. 57 COURT OF APPEALS OF KANSAS 849

State v. Henry

QuikTrip store managers reported a GardaWorld employee had asked for empty deposit bags. The State theorized at trial that Henry initially concealed the thefts by opening the tamper-proof bags collected from the QuikTrip location, removed a portion of the money from inside the bag, and then transferred the remaining currency into a new tamper-proof deposit bag. The State conceded it had no direct evidence showing Henry was the person who had stolen the money, but it noted that Henry was the common denom- inator in all of QuikTrip's reported shortages. The State charged Henry with a single count of theft for unlawfully obtaining or exerting control over currency with a value of at least $25,000 but less than $100,000, a severity level 7 nonperson felony. A jury convicted Henry as charged. The district court sentenced Henry to an underlying 12-month prison sentence and placed him on probation for 60 months. The district court also ordered that Henry pay $78,315 in restitution. Henry timely appeals.

ANALYSIS

On appeal, Henry raises two arguments. First, he argues there was insufficient evidence to support the monetary value element of his theft conviction. Second, he argues the district court imposed an unworkable restitution plan.

I. DOES SUFFICIENT EVIDENCE SUPPORT THE MONETARY VALUE ELEMENT OF HENRY'S THEFT CONVICTION?

Henry first argues there was insufficient evidence to support the monetary value element of his theft conviction because the thefts occurred on 12 separate occasions and no one theft was more than $25,000. Henry asserts that the single larceny doctrine did not permit his multiple felony thefts to be aggregated into a single higher severity level felony theft charge. As a result, he asks us to reverse his conviction. Under the single larceny doctrine,

"[i]f property is stolen by a succession of takings from the same owner and from the same place, each taking is a separate crime if it results from a separate impulse or intent. If it appears, however, that a single incriminating impulse or intent is involved in the successive takings, the takings constitute a single larceny." State v. Grissom, 251 Kan. 851, Syl. ¶ 9, 840 P.2d 1142 (1992).

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State v. Henry

The single larceny doctrine is also known as the single impulse theory or single impulse rule. See State v. McClanahan, 251 Kan. 533, Syl. ¶ 1, 836 P.2d 1164 (1992) (single impulse rule); Gris- som, 251 Kan. at 896 (single impulse theory). The single larceny doctrine was first adopted in Kansas in State v. Hall, 111 Kan. 458, 207 P. 773 (1922). Hall was convicted of one count of grand larceny based on the theft of three items from two separate floors of a department store. In adopting the doctrine, the Kansas Supreme Court stated:

"'Where several articles are taken from the same owner at or about the same time by the same thief, the better practice, in spite of the fact that there are tech- nically several takings, is to regard the takings as a single offense, and to indict and punish but once. This is clearly the case when the goods are taken at the same time by one act of taking. But it is equally true where the goods, although taken at substantially the same time, are taken independently.' (25 Cyc. 66.)" 111 Kan. at 459.

The Hall court held that "[t]he stealing of several articles upon different floors of a department store during one visit of the defendant thereto may properly be charged as a single offense in one count of an information." 111 Kan. 458, Syl. ¶ 1. We view the single larceny doctrine, conceptually at least, as part of the body of law proscribing duplicity and multiplicity in charging documents. See State v. Hood, 297 Kan. 388, 390, 300 P.3d 1083 (2013) (multiplicity); State v. Waufle, 9 Kan. App. 2d 68, 70, 673 P.2d 109 (1983) (duplicity). Henry relies on State v. Ameen, 27 Kan. App. 2d 181, 183, 1 P.3d 330, rev. denied 269 Kan. 934 (2000), for the proposition that the single larceny doctrine cannot be applied to a series of felony thefts, thus prohibiting the State from charging him with a single higher severity level felony theft instead of a series of lower severity level felony thefts. In Ameen, the defendant, as an employee, stole a total of $67,000 from a client over the span of a few months by transferring the client's money into Ameen's own disguised bank account on four separate occasions. Ameen was charged and convicted of four counts of felony theft. On appeal, Ameen argued the district court erred by not instructing the jury on the single larceny doctrine because such an instruction would have allowed the jury to find that a continued

VOL. 57 COURT OF APPEALS OF KANSAS 851

State v. Henry impulse to steal had created the commission of a single theft rather than four distinct thefts. Citing to McClanahan, 251 Kan. 533, and State v. Fox, 242 Kan. 457, 749 P.2d 16 (1988), and without any detailed analysis, the Ameen panel held that the single larceny doctrine did not apply because the doctrine was "limited to cases allowing the State to charge a series of misdemeanor thefts as one felony theft where it appears the thefts resulted from a single incriminating impulse." 27 Kan. App. 2d at 183. The panel also held there was "no real possibility the jury would have returned a verdict other than guilty on all four separate counts." 27 Kan. App. 2d at 183. For reasons we will explain, we disagree with the Ameen panel's legal conclusion that the single larceny doctrine cannot apply in cases involving multiple felonious takings. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018) (one Court of Appeals panel may disagree with another). It is true that Hall's progeny has followed a pattern of applying the single larceny doctrine when the amounts individually stolen would not amount to a felony charge but, in the aggregate, would total above the felony threshold. See, e.g., McClanahan, 251 Kan. at 534 (defendant charged with single count of felony theft based upon aggregate value of items taken); Fox, 242 Kan. at 459-60 (defendant charged with single count of felony unemployment fraud instead of multiple misdemeanors); State v. Green, 213 Kan. 547, 547-48, 516 P.2d 926 (1973) (defendant charged with single count of felony grand theft even though two of the three discrete takings were in amounts less than the felony limit); State v. Rob- erts, 210 Kan. 786, 787, 504 P.2d 242 (1972) (defendant charged with two counts of grand larceny for theft of two power drills from hardware store and 83 records from another store, despite each item having value less than felony limit), cert. denied 414 U.S. 832 (1973); State v. Gordon, 146 Kan. 41, 49, 68 P.2d 635 (1937) (where threshold of $20 required for felony, court clerk properly convicted of single count of felony embezzlement for series of takings of less than $20 totaling over $2,200). However, our Supreme Court in Hall specifically stated that

"'a series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general

852 COURT OF APPEALS OF KANSAS VOL. 57

State v. Henry fraudulent scheme.' (West v. Commonwealth, 125 Va. 747, 754.)" 111 Kan. at 459.

In Fox—one of the cases cited by the panel in Ameen—the district court dismissed the felony unemployment fraud counts against two defendants on the grounds that the complaints were defective and each defendant should have been charged with multiple misdemeanor counts rather than a single felony count. The State appealed the dismissals. The Supreme Court determined the trial court had erred in applying the single larceny doctrine as a matter of law and reversed, holding "the question of whether there was a single larcenous impulse is a question of fact to be determined by the jury." Fox, 242 Kan. at 465. The Fox court emphasized: "'The single larceny doctrine is a rule of evidence, not a rule of law, which permits but does not require the trier of fact to consider a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous scheme.'" 242 Kan. at 462 (quoting Green, 213 Kan. at 549); see McClanahan, 251 Kan. at 535 ("single larceny doctrine is a rule of evidence"); Roberts, 210 Kan. at 791 (same). "'Each case must be determined upon its own special facts and circumstances.'" Hall, 111 Kan. at 459. If the evidence supports it, our Supreme Court has instructed:

"The proper way to charge a defendant under these circumstances is to have an information containing several counts. One count should charge a felony under the single larceny doctrine, and there should be alternative misdemeanor counts for each payment received in the event the jury rejects the single larceny theory." Fox, 242 Kan. at 465.

The two key elements of the single larceny doctrine are:

"(1) Separate acts of theft or embezzlement may constitute felony theft if the acts were the result of one larcenous impulse or plan. "(2) Whether or not the separate acts were the result of one larcenous impulse or plan is a question of fact to be determined by the jury." 242 Kan. at 462- 63.

See McClanahan, 251 Kan. 533, Syl. ¶ 2. In other words, a jury's determination of whether "there are separate offenses or only a single offense should be based on whether the evidence discloses one general intent to steal or distinct and separate in- tents." State v. Stoops, 4 Kan. App. 2d 130, 139, 603 P.2d 221

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State v. Henry

(1979); see also Waufle, 9 Kan. App. 2d at 71 (single impulse rule applicable to criminal damage to property where defendant participated in series of destructive acts committed pursuant to single impulse). "[A] defendant could be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan." Stoops, 4 Kan. App. 2d at 139. Our Supreme Court's analysis in Roberts bolsters our conclusion that the single larceny doctrine may be invoked whenever the facts warrant it. There, the defendant and another were accused of stealing two drills from a hardware store and 83 records from a department store. The State charged the defendant with two counts of grand larceny. The defendant argued he was entitled to an instruction for petty larceny for each taking given the value of each item allegedly taken. The Supreme Court agreed, holding that because the evidence could have supported a finding that his takings were not the result of a single continuing criminal impulse or intent, an instruction for petty larceny should have been given. A new trial was ordered. 210 Kan. at 792. Henry was charged and convicted of severity level 7 nonperson felony theft contrary to K.S.A. 2016 Supp. 21-5801(a)(1), (b)(2), which proscribes theft of at least $25,000 but less than $100,000. The aggregate amount of Henry's alleged thefts totaled $78,315. If Henry had been charged with theft for each discrete taking, the severity level of each theft, save one, could have been properly charged as a severity level 9 nonperson felony theft proscribing thefts of at least $1,500 but less than $25,000 contrary to K.S.A. 2016 Supp. 21-5801(a)(1), (b)(3). One alleged theft, in the amount of $920, could have been charged as a class A nonperson misdemeanor contrary to K.S.A. 2016 Supp. 21-5801(a)(1), (b)(4). Given the evidence, it seems clear to us that Henry should have been charged in the alternative with a lower severity level theft for each separate taking. At the very least, the jury should have been instructed on the elements of the single higher level theft offense charged by the State, which it was, and then, in the

854 COURT OF APPEALS OF KANSAS VOL. 57

State v. Henry alternative, the jury should have been instructed on the single larceny doctrine and the elements of each lesser theft for each taking separately. It was not so instructed. But there is a problem. At no time before the district court did Henry object to the charging document, nor did he ask for a jury instruction concerning the single larceny doctrine and the alternative lower severity level thefts. Henry also fails to make these arguments before us. Thus, we must conclude that Henry has waived or abandoned any claims of error concerning the charging document and the jury instructions. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not adequately briefed deemed waived or abandoned); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (issues not raised before district court cannot be raised on appeal). Accordingly, we are only left with Henry's sufficiency of the evidence argument.

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

As we have outlined, the key factual determination is whether Henry's takings together constituted a single incriminating impulse thus supporting the State's single charge of severity level 7 theft as opposed to separate severity level 9 thefts and one misdemeanor theft. Although each taking occurred at different times over the course of several weeks and from separate QuikTrip stores, all the property stolen was taken from the same entity and certainly appeared to be part of the same scheme: opening each bag, removing money, and then returning a portion of the money in a new, resealed bag. Henry does not challenge the individual amount of each taking, nor does he challenge the aggregate amount of all the takings. When viewing the evidence in the light most favorable to the State, we conclude the jury could have determined that Henry's acts arose out of a single incriminating impulse or plan. Sufficient evidence supports Henry's conviction of

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State v. Henry severity level 7 nonperson felony theft contrary to K.S.A. 2016 Supp. 21-5801(a)(1), (b)(2).

II. DID THE DISTRICT COURT IMPOSE AN UNWORKABLE RESTITUTION PLAN?

Second, Henry argues that the district court imposed an unworkable restitution plan. Specifically, he argues that the restitution plan imposed was unworkable because it would take 43 1/2 years to complete. We review a challenge to the workability of a restitution plan for an abuse of discretion. State v. Holt, 305 Kan. 839, 842, 390 P.3d 1 (2017). "Judicial discretion is abused if no reasonable person would agree with the decision or if the decision is based on an error of law or fact. To the extent this question requires interpretation of the restitution statute, our review is de novo." State v. Meeks, 307 Kan. 813, 816, 415 P.3d 400 (2018). K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court "shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances that would render a plan of restitution unworkable." Under K.S.A. 2019 Supp. 21-6604(b)(1), "restitution is the rule and a finding that restitution is unworkable is the exception." State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). Henry bears the burden of coming forward "with evidence of 'compelling circumstances' that render the restitution plan unworkable." 301 Kan. at 840. K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." The Kansas Supreme Court has held that courts are to evaluate the workability of a restitution plan case-by-case. Meeks, 307 Kan. at 819-20. The Kansas Supreme Court has explained that

"a defendant who argues that restitution is unworkable must come forward with evidence of his or her inability to pay. District courts should use this flexible guideline to evaluate each defendant's unique circumstances before deciding whether the defendant has shown a plan would be unworkable. Some of the factors relevant to the court's inquiry will be the defendant's income, present and future earning capacity, living expenses, debts and financial obligations, and dependents. In some circumstances, the amount of time it will take a defendant to pay off a restitution order will also be relevant, especially if the defendant is subject to probation until the restitution is paid in full. In all circumstances, the district court should keep in mind the ultimate goals of restitution: compensation

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State v. Henry to the victim and deterrence and rehabilitation of the guilty. [Citations omitted.]" 307 Kan. at 820.

Of significance is the fact that the restitution statute specifically allows for probation to be continued indefinitely so a defendant may satisfy unpaid restitution: "If the defendant is ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid." K.S.A. 2019 Supp. 21-6608(c)(7); see State v. Herron, 50 Kan. App. 2d 1058, 1067, 335 P.3d 1211 (2014) (Powell, J., concurring and dissenting) ("[O]ur legislature has specifically allowed for probation to be continued indefinitely so a defendant may satisfy unpaid restitution."), rev. denied 301 Kan. 1049 (2015). Before sentencing, the State filed a motion seeking a restitution order for $78,315—the amount of cash Henry stole. The State also requested that the district court impose a 60-month term of probation and minimum monthly payments of $300 toward the requested order of restitution. Henry filed a written response to the motion in which he argued that such a plan would be unworkable because he would be unable to pay the requested monthly amount. At sentencing, Henry testified that he paid monthly expenses of $1,551, which included $525 in rent, a $247 car payment, $200 for car insurance, $160 in utilities, $189 in child support, $80 for home insurance, and $150 for groceries. He informed the district court that he could not find employment since being fired from GardaWorld. He also testified that his fiancée made roughly $247 a week. On cross-examination, Henry admitted that the car payment in question was for his fiancée's car, his name was not on the car insurance, and he did not personally make payments on the vehicle. This reduced his monthly expenses by $447. He also acknowledged that he had previously indicated total monthly expenses of $780 on his financial affidavit filed at the beginning of the case. Henry further admitted that his fiancée was paying the bills he testified to on direct examination, though he stated he would contribute if he were employed. Henry testified that he did not have any disabilities or health issues that would prevent him from working. The State reiterated its request that the district court order Henry to pay at least $300 a month toward restitution. Henry's

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State v. Henry counsel argued that such a plan would be unworkable, as it would account for only $18,000 in restitution paid over a 60-month term of probation. The district court noted that probation could be extended beyond five years to allow Henry to pay restitution in full but stated that, in almost all similar cases, at the end of the probation term the district court would terminate probation and turn the matter over to collections if a defendant was making reasonable efforts to pay restitution. The district court asked what the defense would consider to be a reasonable plan, and Henry's counsel replied that a $50 monthly payment would be workable. After hearing Henry's testimony and counsels' arguments, the district court ordered Henry to pay $78,315 in restitution in minimum monthly payments of $150. The district court gave Henry's probation supervisor the discretion to adjust the monthly payment depending on Henry's employment status. The district court emphasized that Henry was young, physically capable of working, appeared to have a good mind and can be creative, and that hope- fully he would use that in a positive approach. The district court also expressed confidence that Henry's employment opportunities would likely improve over the course of his probationary period. Finally, in considering Henry's ability to pay, the district court noted that, at least at some point, Henry had $78,315 in cash—the money stolen from the QuikTrip deposits. Henry does not challenge the workability of the monthly amount the district court ordered he pay—$150. In fact, he explicitly admits such an amount is workable. Rather, he argues the restitution plan is unworkable because it will take him 43 1/2 years to pay back the total amount he stole. He argues that a multidecade term of probation is, in essence, per se unreasonable. In support of his argument, Henry relies on Herron, 50 Kan. App. 2d 1058, where the divided panel overruled the district court's order of restitution of $6,864.10, finding it unworkable. Herron made $680 a month; after her expenses, she had only $32 a week for "soap, medicine, and socks." 50 Kan. App. 2d at 1060. The majority held that "no reasonable person would agree that requiring Herron to pay either $6,864.10 in 18 months or $10 a month for the next 57 years is workable. The district court erred here by adopting only a total restitution amount while providing

858 COURT OF APPEALS OF KANSAS VOL. 57

State v. Henry no plan—workable or otherwise—for paying for it." 50 Kan. App. 2d at 1065-66. In Meeks, 307 Kan. at 817-19, the Supreme Court reviewed a series of Court of Appeals cases that addressed the workability of restitution plans and stated:

"With these holdings, the Court of Appeals has defined an 'unworkable' restitution plan as one that is imposed when the defendant would not have the ability to pay towards restitution after covering basic necessities, when over half of the defendant's income would go to restitution and leave little for covering those necessities, or when the defendant would not pay back the restitution in a 'reasonable time frame.'" 307 Kan. at 819.

The Supreme Court cautioned against the "rigid definition of 'unworkable' that may be taking shape as a result of the numerous" decisions from this court. 307 Kan. at 819. In fact, the Supreme Court followed a similar line of thinking as the dissent of Herron, elaborating that K.S.A. 2017 Supp. 21-6604 does not define "unworkable" and that such an omission signifies the "legislature did not intend a rigid or unyielding definition." 307 Kan. at 819; see Herron, 50 Kan. App. 2d at 1066-68 (Powell, J., concurring and dissenting). The Supreme Court elaborated:

"Had the legislature envisioned a scenario in which courts only waived restitution when it would demand more than a certain percentage of a defendant's income or time out of a defendant's life, it could have written that into the statute. Because it did not, we must be confident that our decisions do not force such a result." (Emphasis added.) Meeks, 307 Kan. at 819-20.

Rather than looking to other cases, we will look to the precise facts at hand, as the Supreme Court indicated in Meeks. See 307 Kan. at 819-20 (evaluate restitution on case-by-case basis). Hen- ry's argument that he will likely remain on probation is inconsistent with the district court's comments at sentencing. The district judge stated that his general practice was to terminate probation and turn the matter over to collections if a defendant had made reasonable progress toward the restitution payments during the probationary period. While that judge has since retired, Henry still has no support for his assertion that the restitution plan will likely create a multidecade term of probation. There is no way to know if Henry will be on probation for 43+ years because Henry's 60

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State v. Henry months of probation have not yet concluded. At the end of his ordered term of probation, the district court may, in fact, turn the matter over to collections or it may extend probation to ensure Henry's payment of restitution. Importantly, should the district court elect to extend Henry's probation, such an action is explicitly permitted by K.S.A. 2019 Supp. 21-6608(c)(7). Moreover, the district court imposed a large amount of restitution because Henry stole a large amount of money. Logically, large restitution orders will take a longer time to repay. Given Henry's agreement that the monthly payment is reasonable and the Legislature's explicit allowance that a term of probation may be extended indefinitely to secure the payment of restitution, the district court imposed a workable restitution plan.

Affirmed.

860 COURT OF APPEALS OF KANSAS VOL. 57

Burch v. Howard

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No. 120,704

TIMOTHY J. BURCH, Appellant, v. LAURA HOWARD, SECRETARY OF KANSAS DEPARTMENT FOR AGING AND DISABILITY SERVICES, Appellee.

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SYLLABUS BY THE COURT

1. HABEAS CORPUS—K.S.A. 60-1501—Petition for Prisoner to Allege In- tolerable Conduct or Mistreatment. A petition filed under K.S.A. 60-1501 must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature.

2. COURTS—Mootness Doctrine—Stems from Kansas Case-or-Controversy Requirement. Kansas appellate courts do not decide moot questions. The mootness doctrine stems from Kansas' case-or-controversy requirement. A justiciable controversy involves definite and concrete issues—adverse legal interests that are immediate, real, and amenable to conclusive relief. A case becomes moot when the controversy between the parties has ended and any judgment of the court would be ineffective.

3. SAME—Moot Issue—Dismissal of Appeal. A case is not moot where it may have adverse legal consequences in the future. Given the finality of a mootness determination, an appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose.

4. HABEAS CORPUS—Petitioners' Challenge to Sexual Predator Treatment Program—Individual Standing Requirement. Petitioners under K.S.A. 60- 1501 only have standing to challenge the Sexual Predator Treatment Pro- gram's treatment regimen as it has been applied to them. Without showing the Program violates their individual rights, petitioners have no standing to challenge how the Program impacts others.

5. SAME—Petitioner's Challenge to Sexual Predator Treatment Program— Limited Exception to Standing Requirement. Courts have recognized a limited exception to this standing requirement, finding noncompliance with a treatment regimen does not prevent consideration of a petitioner's challenge when the treatment is so lacking that it could be deemed the personnel were indifferent or the requirements of the Sexual Predator Treatment Program were otherwise egregious and shocking.

6. SEXUALLY VIOLENT PREDATOR ACT—Sexual Predator Treatment Program—Effectiveness of Program's Treatment. When a person declines

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Burch v. Howard

to participate in the Sexual Predator Treatment Program's treatment regimen, there is no way to determine whether the Program's treatment, as applied to that person, has been or will be effective.

7. SEXUALLY VIOLENT PREDATOR ACT—Change in Person's Mental Ab- normality or Personality Disorder—Part of Ultimate Legal Test. The Kansas Sexually Violent Predator Act's reference to a change in a person's "mental abnormality or personality disorder" is part of the ultimate legal test applied by courts assessing whether a person should continue to be committed under the Act. It does not establish or require a certain standard for treatment purposes.

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed February 28, 2020. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jessica F. Conrow, senior legal counsel, of Kansas Department for Aging and Disability Services, for appellee.

Before BUSER, P.J., SCHROEDER and WARNER, JJ.

WARNER, J.: In 2002, a court committed Timothy Burch to the Sexual Predator Treatment Program at Larned State Hospital. Ten years later, he filed this K.S.A. 60-1501 petition, challenging the adequacy of the Program's treatment regimen. After hearing the testimony and evaluating the evidence submitted by both Burch and the Department for Aging and Disability Services, the district court ruled that because Burch had decided to stop participating in the Program's treatment, he could not prove his treatment was constitutionally deficient. On appeal, Burch again questions the adequacy of his treatment, focusing primarily on whether the Program fails to meet the statute's requirements because it does not directly measure the change in a person's "mental abnormality or personality disorder." After carefully assessing the arguments presented, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Burch was convicted in 1989 of three counts of aggravated criminal sodomy, five counts of indecent liberties with a child, and two counts of sexual exploitation of a child. See In re Care & Treatment of Burch, 296 Kan. 215, 218, 291 P.3d 78 (2012). In 2002, a district court ordered that he be committed to the Kansas

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Burch v. Howard

Sexual Predator Treatment Program—established by the Kansas Sexually Violent Predator Act—at Larned State Hospital. Eight- een years later, Burch remains committed under that Program. In 2012, Burch filed a petition for a writ of habeas corpus under K.S.A. 60-1501 against the Kansas Department for Aging and Disability Services, asserting several claims relating to the Pro- gram. As Burch's case progressed, he and the Department agreed to narrow his claims to two issues: (1) Whether, from June 2002 to March 2012, Burch's confinement was more restrictive than for inmates imprisoned through the Kansas Department of Correc- tions; and (2) whether, during that same period, the Program provided Burch adequate treatment (and thus, according to Burch's phrasing, offered a path for his eventual release). The district court conducted separate hearings on these issues. The issues raised in this appeal are limited to the court's rulings on this second issue—Burch's adequacy-of-treatment claim. At the evidentiary hearing on this claim, the parties called multiple witnesses who testified about the Program structure and metrics, as well as Burch's progress. From 2002 to 2012, the Pro- gram employed a seven-phase treatment system. Each phase addressed specific skills and built on treatment from earlier phases. During these phases, patients would attend recreational therapy and individual- and group-therapy sessions. Recreational therapy activities allowed staff to gauge whether a patient could communi- cate and cooperate with others. In group therapy, patients discussed sex-offense-specific treatment, while patients in individual therapy could discuss any concerns. Phases I through IV were inpatient periods. In Phase I, patients learned about the Program and began developing skills such as participating in groups. Phase II consisted of a 12-month aca- demic period during which patients took classes on subjects such as anger management, human sexuality, and relapse prevention. In Phase III, patients began applying Phase II concepts. And during Phase IV, patients created, presented, and refined a relapse prevention plan to manage their sexual impulses. Phases V through VII were transitional, outpatient periods. Phase V entailed supervised community outings, during which staff gauged how patients applied their inpatient experiences to

VOL. 57 COURT OF APPEALS OF KANSAS 863

Burch v. Howard other settings. In Phase VI's transitional release, patients would move to a new location where they would find a job, pay bills, and become self-sufficient. Finally, in Phase VII's conditional release, patients would find housing and gain more independence. After five years on conditional release, the patient could petition the court for release from the Program. Movement to Phase V required institutional approval, and the transition to Phase VI required both institutional and court approval. K.S.A. 2019 Supp. 59-29a08(g). To gauge whether a person could advance to the next treatment phase, the Program measured changes using Treatment Needs Assessment (TNA) scores. The TNA was an assessment tool designed by the Program, using concepts generally accepted in the field of sex-offender treatment. Using a 10-point scale, staff rated patients in 14 categories, including personal responsibility, relationship skills, self-awareness, transparency/secrecy, and insight. The Program required patients to achieve and maintain certain TNA scores to advance to the next treatment phase. Since staff based their scores on how patients participated in treatment, staff could not assess a patient's progress if the patient did not participate. Each year, the Program would submit an annual report of a patient's progress to the court, as required by K.S.A. 2019 Supp. 59-29a08. Multiple staff members contributed to these reports, and the patient could participate in the process through an interview. But the ultimate recommendation as to whether a person was ready for transitional release was based on Program progress and TNA scores. Burch entered the Program in June 2002. He entered Phase V—the first transitional stage—in November 2006 and stayed there until March 2008. During a search in January 2008, Program staff found a glass bottle of cologne and two inappropriate movies in Burch's room. Possessing the glass bottle violated Program rules, and though the Program's movie committee had approved one of the movies, staff deemed it was inappropriate for Burch. As a result, Burch was demoted to Phase IV (an inpatient commitment). He was later demoted to Phase II for not participating in

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Burch v. Howard treatment. The district court found that since July 2009, Burch's participation in treatment has been "virtually nonexistent." Dr. Austin DesLauriers, the Program Director from 1996 until 2014, testified that of the 250 patients admitted to the Program during that time, only 3 had been released. He also testified the Program gauges patients' volitional control and propensity to commit sexual violence by examining treatment progress. Other Pro- gram employees testified similarly. Burch called several witnesses who stated he had never acted out sexually. He also called an expert, Dr. Robert Barnett, who analyzed Burch four times between 1999 through 2012 and has conducted dozens of evaluations for other Program patients. Dr. Barnett testified he does not use risk assessments; instead, he relies on his clinical experience to make recommendations. Based on his experience and evaluations of Burch, Dr. Barnett testified Burch has no mental abnormality and can control his behavior. Dr. Barnett gave his opinions that Burch's treatment in the Program was so minimal as to be nonexistent and that the Program's pro- gression requirements were so vague that Burch lacked a path to ever being released. After the evidentiary hearing on Burch's adequacy-of-treatment claim, the district court issued a memorandum decision denying Burch's petition. The court noted that although Burch made significant progress early in his treatment, he later "encountered problems, broke rules, lost phase levels, and ultimately stopped participating in treatment." The court ruled that since Burch had decided to disengage from treatment, Program staff could not evaluate whether he could safely be released. Thus, Burch had not carried his burden of proof to show shocking or intolerable conduct or a continuing constitutional violation under K.S.A. 60-1501. Burch appeals.

DISCUSSION

Burch has presented claims regarding various aspects of the Kansas Sexual Predator Treatment Program to this court and others on several previous occasions. See Burch v. Kansas Depart- ment for Aging and Disability Services, No. 121,511, 2019 WL 6795825 (Kan. App. 2019) (unpublished opinion), petition for rev.

VOL. 57 COURT OF APPEALS OF KANSAS 865

Burch v. Howard filed December 26, 2019; Burch v. Keck, 56 Kan. App. 2d 1162, 444 P.3d 1000 (2019); In re Care & Treatment of Burch, No. 116,600, 2017 WL 3947430 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 987 (2018); In re Care & Treatment of Burch, No. 116,370, 2017 WL 2403389 (Kan. App. 2017) (unpublished opinion); Burch v. Ash, No. 116,599, 2017 WL 2021067 (Kan. App. 2017) (unpublished opinion); Burch v. Bruffett, No. 116,150, 2017 WL 754250 (Kan. App. 2017) (unpublished opinion); Burch v. Bruffett, No. 113,607, 2015 WL 7693761 (Kan. App. 2015) (unpublished opinion); Burch v. Sullivan, No. 109,175, 2013 WL 6389201 (Kan. App. 2013) (unpublished opinion), rev. denied 301 Kan. 1045 (2015); Merryfield v. Sullivan, No. 109,039, 2013 WL 4730565 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1270 (2014); Burch v. Lynch, No. 108,798, 2013 WL 2972822 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1201 (2013); Merryfield v. Jordan, No. 106,574, 2012 WL 3171872 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013); Burch v. Lynch, No. 106,612, 2012 WL 718991 (Kan. App. 2012) (unpublished opinion); In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271 (Kan. App. 2010) (unpublished opinion), aff'd 296 Kan. 215, 291 P.3d 78 (2012); see also Burch v. Jordan, No. 07-3236- JAR, 2007 WL 4163637 (D. Kan. 2007) (unpublished opinion), refiled Burch v. Jordan, No. 07-3236, 2010 WL 5391569 (D. Kan. 2010) (unpublished opinion), aff'd sub nom. Burch v. Jordan, 444 Fed. Appx. 236 (10th Cir. 2011) (unpublished opinion). Burch initiated this case under K.S.A. 60-1501 in 2012. A petition filed under this statute "must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature." Grammer v. Kansas Dept. of Corrections, 57 Kan. App. 2d 533, Syl. ¶ 1, 455 P.3d 819 (2019). While Burch's amended petition presented two claims for the district court's consideration—one comparing the Program's restrictions to those of inmates in the Kansas Department of Corrections and one challenging the adequacy of the Program's treatment—Burch has not appealed the court's ruling on the restrictive-confinement question. Thus, the sole issue presented for appeal is Burch's argument that the Sexual Predator Treatment Program did not provide adequate treatment

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Burch v. Howard under the Sexually Violent Predator Act. Accord Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999) ("'Where the appellant fails to brief an issue, that issue is waived or abandoned.'"). Burch correctly asserts that the Act requires the Department to provide "control, care and treatment" for committed persons like Burch "until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." K.S.A. 2019 Supp. 59-29a07(a). Burch argues that the Pro- gram is designed with various therapeutic goals, not the "mental abnormality or personality disorder" language from the statute. According to Burch, the Program's disregard of this statutory requirement—coupled with the reality that only three people have ever been released from treatment under the Program—amounts to "shocking and intolerable conduct" and a continuing violation of his due process rights under K.S.A. 60-1501.

1. Burch's claims regarding the Program's previous treatment regimen are not moot.

Before evaluating the merits of Burch's adequacy-of-treatment claim, we must consider the Department's assertion that his petition no longer presents a justiciable controversy. More specifically, the Department argues that Burch's adequacy-of-treatment claim is moot, as the Sexual Predator Treatment Program has adopted a new structure and diagnostic assessment since Burch filed his K.S.A. 60-1501 petition. Because the Program has changed and Burch's petition challenged the previous treatment structure, the Department asserts that this case no longer presents conduct the court can remedy. Kansas appellate courts "do not decide moot questions." State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012). In- stead, a court "'determine[s] real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it'" and "'adjudicate[s] those rights in such manner that the determination will be operative, final, and conclusive.'" State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009) (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).

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Burch v. Howard

The mootness doctrine stems from Kansas' case-or-controversy requirement. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008). A justiciable controversy involves "definite and concrete issues"—that is, "'adverse legal interests that are immediate, real, and amenable to conclusive relief.'" Montgomery, 295 Kan. at 840 (quoting Morrison, 285 Kan. at 890-91). A case becomes moot "when the controversy between the parties has ended and any judgment of the court would be ineffective." Kerry G. v. Stacy C., 55 Kan. App. 2d 246, 248, 411 P.3d 1227 (2018). At the same time, Kansas courts have recognized that a case "is not moot where it may have adverse legal consequences in the future." Montgomery, 295 Kan. 837, Syl. ¶ 4. Given the finality of a mootness determination, an appeal "will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose." 295 Kan. 837, Syl. ¶ 3. Since Burch filed his K.S.A. 60-1501 petition in 2012, the Program's structure has been reorganized. Instead of the previous seven-phase system, the Program now uses a three-tier approach. Tier I involves in-patient treatment where patients show they can manage their behavior. Tier II incorporates supervised community outings to gauge how well patients can apply what they have learned to a community environment. And Tier III focuses on re- integration; patients go on unsupervised outings, move into a re- integration facility, obtain a driver's license, buy a car, and get a job. The Program has also replaced the TNA with a different assessment tool, the Sex Offender Treatment Intervention Progress Scale (SOTIPS). SOTIPS uses a "16-item rating scale designed to assess dynamic risk among adult male sex offenders and degree of change at 6-month intervals during treatment." Graders use a four-point scale to assess factors such as sexual attitudes, sexual risk management, antisocial behavior, supervision cooperation, treatment cooperation, problem solving, and emotion management. Various witnesses at Burch's evidentiary hearings discussed these differences, though the court's decision below focused on

868 COURT OF APPEALS OF KANSAS VOL. 57

Burch v. Howard the system in place at the time Burch filed his petition. There are certainly similarities between the previous and current Program structures: The Program's previous Phases I through IV are now essentially incorporated into Tier I; Phase V is similar to Tier II; and Phases VI and VII are akin to Tier III. And SOTIPS is very similar to the TNA. While the TNA used a 10-point scale assessing 14 criteria in 90-day increments, SOTIPS uses a 4-point scale to assess 16 criteria in 180-day increments. Some TNA metrics overlap with SOTIPS categories, and others do not. Since the changes generally relate to the Program's form rather than its substance, we conclude the Program has not so changed as to render Burch's adequacy-of-treatment claim moot. Burch's main argument—that the Program does not use the statutory assessment criteria by evaluating patients' change in "mental abnormality or personality disorder"—transcends the style of assessment used. This argument remains relevant whether the Pro- gram employs a phase- or tier-based system, or whether it uses the TNA or SOTIPS assessment tools. Thus, we cannot say "the actual controversy has ceased" or that a decision in this case "would be ineffectual for any purpose." Montgomery, 295 Kan. 837, Syl. ¶ 3. We therefore turn to Burch's adequacy-of-treatment claim.

2. Because Burch has declined to participate in the Program's treatment, he does not have standing to challenge the adequacy of its treatment choices.

Burch brings a two-pronged challenge to the Program's treatment choices. First, he asserts the Program fails to measure committed persons' readiness for release under the standards articulated by the Act and instead uses different treatment assessments and goals. Accord K.S.A. 2019 Supp. 59-29a07(a) (permitting commitment "until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large"). Second, he points to the Program's low matriculation rate—only three persons have been released—to argue these chosen treatment goals "ultimately [have] proven to be a failure." Ac- cording to Burch, this combination rises to "shocking and intolerable conduct," and the "prolonged indifference" by the Program "represents a continuing mistreatment of a constitutional stature."

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Burch v. Howard

As the district court noted, however, Burch's claim faces a hurdle of his own making—a person must participate in the treatment in order to bring a legal challenge regarding its adequacy. In Johnson v. State, 289 Kan. 642, 215 P.3d 575 (2009), our Kansas Supreme Court declined to reach the merits of a similar facial challenge to the Sexual Predator Treatment Program when the petitioners had declined to participate in treatment. The court observed that the petitioners "only have standing to assert constitutional infirmities in the program as applied to them." 289 Kan. at 651. Without showing the Program violated their individual rights, the petitioners had no standing to challenge "how the program impacts others." 289 Kan. at 651. Thus, the controlling question in Johnson was not the petitioners' broad challenge to the Program's treatment goals, but whether the Program had provided inadequate treatment to the petitioners themselves. Because the petitioners had declined to participate in the Program's treatment regimen, there was no way to determine whether the Program's treatment, "as applied to them, has been or will be effective." 289 Kan. at 655. The petitioners were instead asking the court "to consider . . . the hypothetical question of whether the program would fail to provide constitutionally adequate treatment if they complied with the treatment program." 289 Kan. at 655. The answer to such a question would be an advisory opinion, which Kansas courts cannot render. 289 Kan. at 655-56; see Montgomery, 295 Kan. 837, Syl. ¶ 2; Morrison, 285 Kan. at 890-91. In this case, the record reflects that shortly after Burch was moved from the transitional Phase V back to inpatient Phase IV, he declined to participate in treatment. Burch's annual report in 2011 noted he had "made no therapeutic progress in the program during the last year," largely due to "his own decision to not participate in treatment activities." The report further noted that Burch's decision to decline treatment was "very conscious and declared." He has not progressed through the Program's treatment phases or tiers. In fact, the district court described Burch's participation in treatment since July 2009 as "virtually nonexistent." We are conscious that Burch's decision to stop cooperating in his treatment under the Program may stem from his frustration and

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Burch v. Howard disagreement with the Program's treatment choices. But "mere disagreement with reasonable and prescribed treatment does not establish a constitutional deprivation." Johnson, 289 Kan. at 656. If Burch does not participate in the Program's treatment, he "cannot establish the program is ineffective as applied to" him. See 289 Kan. at 656. That is, without participating in treatment, he cannot demonstrate the Program's treatment regimen is inadequate or is an unconstitutional impediment to his release—if that is indeed the standard a court would apply. Cf. 289 Kan. at 654-55 (noting jurisdictional disagreement about standard for evaluating treatment in civil commitment programs but declining to reach issue due to petitioners' lack of standing). Because Burch cannot show the Program's treatment is inadequate as applied to him, he has no standing to assert speculative claims as to whether the Program provides adequate treatment to those who choose to participate in its requirements. See 289 Kan. at 656. Like the district court, we conclude Burch lacks standing to assert a broad facial challenge against adequacy of the treatment—including the treatment choices and assessment criteria implemented—provided under the Program.

3. The Program's treatment regimen is consistent with the statutory criteria established under the Sexually Violent Predator Act.

The Johnson court recognized a limited exception to this standing requirement, finding noncompliance does not prevent consideration of a petitioner's challenge when the "treatment [is] so lacking that it could be deemed the personnel were indifferent or the requirements of the program were otherwise egregious and shocking." 289 Kan. at 656. Johnson found this exception inapplicable there, summarily concluding the treatment under the same seven-phase system Burch challenges here "is not shocking to the conscience." 289 Kan. at 656. In Johnson, the petitioners argued that the treatment offered under the Program was constitutionally inadequate because it was not designed to "cure" them of their pedophilia or offer a possibility of release. To the extent that Burch raises similar challenges to the Program's assessment criteria and other treatment choices, he

VOL. 57 COURT OF APPEALS OF KANSAS 871

Burch v. Howard lacks standing to assert those claims. Cf. Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (courts defer to the judgment of medical professionals when assessing and establishing treatment); Merryfield v. State, 44 Kan. App. 2d 817, 821-22, 241 P.3d 573 (2010) (acknowledging courts should generally defer to professionals' judgment regarding treatment methods but stating that standard should not be applied at the summary dismissal stage). Burch raises an additional question not argued in Johnson, however: Whether the Program has demonstrated indifference to the Act's statutory mandate by basing its treatment goals on criteria other than the Act's "mental abnormality or personality defect" language. In other words, is the Program's treatment regimen consistent with the mandates of the Sexually Violent Predator Act? See 289 Kan. at 653 (indifference to statutory mandates may be "shocking" within the meaning of K.S.A. 60-1501). Unlike the issue raised by the Johnson petitioners, our consideration of Burch's statutory claim would not result in an advisory opinion, as it goes to the statutory structure of the Program itself. Thus, we proceed to the merits of Burch's claim to the limited extent it compares the Program's treatment regimen to the Act's statutory requirements. The commitment and review procedures under the Act have remained substantially unchanged since Burch's commitment in 2002. The original decision whether a person is a sexually violent predator—and thus should be civilly committed to the Program— is made by a court or jury. See K.S.A. 2019 Supp. 59-29a06. K.S.A. 2019 Supp. 59-29a07(a) provides that once this determination is made, "the person shall be committed to the custody of the secretary for aging and disability services for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." To assess whether this standard has been met (or whether a person committed under the Act should be released), Kansas law requires "a current examination of the person's mental condition [to be] made once every year." K.S.A. 2019 Supp. 59-29a08(a). The Secretary of the Department for Aging and Disability Ser- vices then must provide each committed person with notice of the

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Burch v. Howard right to challenge a recommendation of continued commitment. K.S.A. 2019 Supp. 59-29a08(a). If a hearing is requested, the committed person bears the burden to prove "probable cause to believe the person's mental abnormality or personality disorder has significantly changed." K.S.A. 2019 Supp. 59-29a08(d). If no hearing is requested, the court that originally committed the person to the Program must conduct an "in camera annual review of the status of the person's mental condition and determine whether the person's mental abnormality or personality disorder has significantly changed so that an annual review hearing is warranted." K.S.A. 2019 Supp. 59-29a08(f). Burch argues that under these statutes, the Program's treatment must be geared toward assessing a committed person's "mental abnormality or personality disorder." He asserts that the testimony at his evidentiary hearing demonstrated that the Program had disregarded this standard and instead employed a different treatment regimen. In particular, Burch points to the testimony of Keri Applequist, who served as a Program therapist from 1998 until 2013. When asked how she assessed whether a person's mental abnormality had changed, Applequist explained, "As a therapist, I look at the therapeutic qualities of treatment . . . . I don't look at the legal terms. I look at it from the therapeutic terms." Burch argues this testimony demonstrates Program staff were ig- noring statutory requirements, employing instead the TNA and phase-based treatment structure. Contrary to Burch's arguments, however, the Act does not demand that a committed person's treatment be phrased in terms of his or her "mental abnormality or personality disorder." Instead, the Act differentiates between the ultimate legal standard a court must consider in determining whether a person should be advanced in (or released from) the Program and the broader question of the person's treatment. The legal standard—whether a person's "mental abnormality or defect has so changed that the person is safe to be at large"—balances numerous considerations, including the person's current mental condition, the previous reasons for commitment, and public safety. See K.S.A. 2019 Supp. 59- 29a07(a); K.S.A. 2019 Supp. 59-29a08(d), (f). In contrast, the Act's provisions concerning treatment professionals' assessments

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Burch v. Howard of their patients do not incorporate this standard; these provisions more broadly reference the treated person's "mental condition." See K.S.A. 2019 Supp. 59-29a08(a), (f). Though this distinction is found throughout the Act, one example appears in K.S.A. 2019 Supp. 59-29a08(f). This statute concerns a court's review of the Department's annual report and recommendation for a patient who does not request a hearing challenging his or her commitment. In such circumstances, the Act directs the court to "conduct an in camera annual review of the status of the person's mental condition and determine whether the person's mental abnormality or personality disorder has significantly changed so that an annual review hearing is warranted." (Empha- ses added.) K.S.A. 2019 Supp. 59-29a08(f). That is, the court must review the information provided from the Department regarding the person's treatment—"the status of the person's mental condition"—and then reach a conclusion as to the ultimate legal standard—"whether the person's mental abnormality or personality disorder has significantly changed" to necessitate a hearing. In upholding the constitutionality of the Act in a previous facial challenge, the United States Supreme Court observed that courts "have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes." Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). And legal phrases, "which must 'take into account such issues as individual responsibility . . . and competency,' need not mirror those advanced by the medical profession." 521 U.S. at 359 (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxiii, xxvii [4th ed. 1994]). The Act's reference to a change in a person's "mental abnormality or personality disorder" is part of the ultimate legal test applied by courts assessing whether a person should continue to be committed under the Act. It does not establish or require a certain standard for treatment purposes. Contrary to Burch's statutory argument, the Act does not require the Program's treatment regimen to be phrased in terms of its ultimate legal standard. Instead, the Act allows treatment professionals freedom to adopt a treatment program and assessment

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Burch v. Howard tools to address the Program's statutory charge—"providing treatment and protecting the public." See Johnson, 289 Kan. at 650; In re Care & Treatment of Hay, 263 Kan. 822, 832-33, 953 P.2d 666 (1998). The district court did not err in denying Burch's petition for a writ of habeas corpus under K.S.A. 60-1501.

Affirmed.

VOL. 57 COURT OF APPEALS OF KANSAS 875

Aikins v. Gates Corp.

___

No. 120,905

CATHY MELONIE AIKINS, Appellant, v. GATES CORPORATION, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellees.

___

SYLLABUS BY THE COURT

1. STATUTES—Interpretation—Administrative Agency's Interpretation of Statute—Appellate Review. Kansas courts give no deference to an administrative agency's interpretation of statutory language. Rather, the interpretation of a statute is a legal question over which courts' review is unlimited.

2. SAME—Interpretation—Intent of Legislature Governs. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of the statute. If a statute is plain and unambiguous, courts will not speculate about the legislative intent behind that clear language. Courts do not add or ignore statutory requirements; they give ordinary words their ordinary meanings. Only when a statute's language is unclear or ambiguous does a court turn to canons of construction or legislative history to construe the legislature's intent.

3. WORKERS COMPENSATION—Timely Payments of Awards for Work- ers' Injuries—Claimant May Apply for Civil Penalty. To ensure the timely payment of awards for workers' injuries, K.S.A. 44-512a provides an avenue for claimants to apply for a civil penalty when payments are overdue. When compensation has been awarded but not paid when due, a claimant may demand payment from the employer or the employer's insurance carrier. If the employer refuses to pay the award or fails to pay the award within 20 days of the claimant's demand, the claimant shall be entitled to a civil penalty.

4. SAME—Payment of Compensation Award—No Demand until Payment Due. K.S.A. 44-512a does not allow a claimant to demand payment of a compensation award, or seek a penalty for nonpayment of an award, until payment has become due.

5. SAME—Payment of Compensation Award—Right to Action When Award Is Final. The right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Workers Compensation Appeals Board. This structure allows the Board to conduct its review, and alter any award accordingly, before an employer's payment obligations begin.

6. SAME—Payment of Compensation Award—Three Possibilities When Award Payable. Under K.S.A. 2019 Supp. 44-551, there are three possibilities when an

876 COURT OF APPEALS OF KANSAS VOL. 57

Aikins v. Gates Corp.

award could become payable: (1) If any party seeks review by the Workers Compensation Appeals Board, the Board must issue its decision within 30 days of when the parties submit arguments; payment becomes due when the Board issues its decision on the award. (2) If the Board does not issue its decision within 30 days of the parties' arguments to the Board, payments for any medical or disability compensation must begin on the 31st day after argument. (3) If no party seeks the Board's review of an ALJ's award, that award becomes due after the time for seeking review expires.

7. SAME—Payment of Compensation Award—No Stay of Payments Needed During Review. There is no need for a stay of payment obligations during the Workers Compensation Appeals Board's review of an award under K.S.A. 2019 Supp. 44-551 because no payments are yet due.

Appeal from the Workers Compensation Appeals Board. Opinion filed Feb- ruary 28, 2020. Affirmed.

William L. Phalen, of Pittsburg, for appellant.

Brian J. Fowler and Brent A. Jepson, of Evans & Dixon, LLC, of Kansas City, Missouri, for appellees.

Before BUSER, P.J., SCHROEDER and WARNER, JJ.

WARNER, J.: The Kansas Workers Compensation Act provides an avenue for a worker to seek a penalty from an employer who fails to pay his or her compensation award. But Kansas law and logic dictate that such payments must be due before any penalty can be ordered. This case presents the question of when payment obligations for such awards arise. Cathy Melonie Aikins demanded payment from her employer after an administrative law judge entered a compensation award in her favor but before that award was reviewed by the Workers Compensation Appeals Board. While the parties were submitting arguments to the Board, the ALJ ordered a penalty against Aikins' employer for failing to pay her claim. The Board later reversed the penalty, finding Aikins' payment demand and the ALJ's penalty order were premature because the employer was not required to pay the award until after the Board concluded its review. We affirm the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Aikins was injured in a car accident while leaving work at the Gates Corporation in December 2014. The facts surrounding that

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Aikins v. Gates Corp. accident and Aikins' injuries are discussed in detail in the appeal affirming the Board's reversal of Aikins' compensation award, Ai- kins v. Gates Corp., No. 120,769, 2020 WL 499830 (Kan. App. 2020) (unpublished opinion). Those facts have limited relevance here. Rather, the circumstances giving rise to this appeal are procedural in nature, relating to the post-award proceedings Aikins initiated in pursuit of a penalty for nonpayment of her claim. On May 1, 2018, an administrative law judge awarded Aikins compensation for injuries she sustained in the accident. One week later, on May 8, Aikins served Gates with a demand for compensation based on the ALJ's award. The next day, Gates sought review of the ALJ's ruling by the Board, claiming the ALJ erred in finding Aikins suffered a permanent disability in the accident. On June 6, before the Board reviewed the underlying award, Aikins applied to the ALJ for penalties under K.S.A. 44-512a due to Gates' failure to pay the compensation she demanded. The ALJ held a hearing on Aikins' penalty request and ruled in her favor. In doing so, the ALJ relied on this court's interpretation of K.S.A. 2014 Supp. 44-556—a different statute—in Nuessen v. Suther- lands, 51 Kan. App. 2d 616, 352 P.3d 587 (2015), and Gould v. Wright Tree Service Inc., No. 116,008, 2018 WL 1545789 (Kan. App. 2018) (unpublished opinion), where we concluded that there was no automatic stay of payments due on compensation awards during appeals from the Board to the Kansas Court of Appeals. Based on these decisions, the ALJ concluded Aikins was entitled to a penalty because Gates had not moved for, or obtained, a stay on the underlying award when it sought review by the Board. Gates appealed the ALJ's imposition of the penalty to the Board, arguing Aikins' motion for penalties under K.S.A. 44-512a was untimely because compensation was not yet due under K.S.A. 2019 Supp. 44-551. Gates argued no payment would become due until Aikins received a decision from the Board affirming the award or until 30 days passed after the Board had heard the parties' oral argument. The Board reversed the ALJ's award on her original claim, finding by a preponderance of the evidence that Aikins did not suffer a permanent injury from the accident. Less than a month

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Aikins v. Gates Corp. later, the Board also reversed the ALJ's penalty ruling. In particular, the Board disagreed with the ALJ's extension of our analysis in Nuessen and Gould of K.S.A. 2014 Supp. 44-556—which concerns appeals from the Board to the Court of Appeals—to the Board's review process under K.S.A. 2019 Supp. 44-551. The Board found Aikins' penalty application to be premature and the resulting penalty erroneous because Gates had no duty to pay the award during the pendency of the Board's review. Aikins appeals.

DISCUSSION

To ensure the timely payment of awards for workers' injuries, K.S.A. 44-512a provides an avenue for claimants to apply for a civil penalty when payments are overdue:

"In the event any compensation, including medical compensation, which has been awarded under the workers compensation act, is not paid when due to the person, firm or corporation entitled thereto, the employee shall be entitled to a civil penalty, . . . if: (1) Service of written demand for payment, setting forth with particularity the items of disability and medical compensation claimed to be unpaid and past due, has been made personally or by registered mail on the employer or insurance carrier liable for such compensation and its attorney of record; and (2) payment of such demand is thereafter refused or is not made within 20 days from the date of service of such demand." (Emphases added.) K.S.A. 44- 512a(a).

Under this provision, when compensation has been awarded "but not paid when due," a claimant may demand payment from the employer or the employer's insurance carrier. Acosta v. Na- tional Beef Packing Co., 273 Kan. 385, 398, 44 P.3d 330 (2002). If the employer refuses to pay the award or fails to pay the award within 20 days of the claimant's demand, the claimant "shall be entitled to a civil penalty." K.S.A. 44-512a(a). The issue presented in this appeal is when payment of a workers-compensation award becomes due. This question involves the interplay of two statutory provisions: K.S.A. 44-512a and K.S.A. 2019 Supp. 44-551. Although the ALJ and the Board interpreted these two statutes differently and reached different conclusions on the ultimate question, Kansas courts give no deference to administrative agencies' interpretations of statutory language. See Doug- las v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (no deference given to agencies' interpretations of their

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Aikins v. Gates Corp. own regulations). Rather, the interpretation of a statute is a legal question over which our review is unlimited. In re Tax Appeal of Southwestern Bell, 57 Kan. App. 2d 723, 726, __ P.3d __, 2020 WL 398642, (No. 120,167 filed January 24, 2020). 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. Only when a statute's language is unclear or ambiguous does this court turn to canons of construction or legislative history to construe the legislature's intent. Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019); see Bergstrom v. Spears Man- ufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009). K.S.A. 2019 Supp. 44-551, which generally concerns the qualifications and authority of administrative law judges, also sets forth the process for review of ALJs' decisions by the Board. That statute concludes with the rule that "the decisions and awards of the board shall be final." K.S.A. 2019 Supp. 44-551(p). The Board's review process is broadly described in K.S.A. 2019 Supp. 44-551(l)(1), which states in relevant part:

"All final orders, awards, modifications of awards, or preliminary awards under K.S.A. 44-534a, and amendments thereto, made by an administrative law judge shall be subject to review by the workers compensation appeals board upon written request of any interested party within 10 days. . . . Review by the board shall be a prerequisite to judicial review as provided for in K.S.A. 44-556, and amendments thereto. On any such review, the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation or to remand any matter to the administrative law judge for further proceedings. The orders of the board under this subsection shall be issued within 30 days from the date arguments were presented by the parties." (Emphasis added.)

K.S.A. 2019 Supp. 44-551(l)(1) thus requires the Board to issue its orders on compensation awards within 30 days of the comple- tion of the parties' arguments during review. K.S.A. 2019 Supp. 44-551(l)(2)(A) concerns the Board's review of preliminary awards—an issue not presented here—and similarly requires that

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Aikins v. Gates Corp.

"orders of the board under this subsection shall be issued within 30 days from the date arguments were presented by the parties." Having established the timeframe for the Board's issuance of orders on review, K.S.A. 2019 Supp. 44-551(l)(2)(B) clarifies that payment of an award is not due until the close of this 30-day window:

"If an order on review is not issued by the board within the applicable time period prescribed by subsection (l)(1) [that is, 30 days after the parties present their arguments to the Board], medical compensation and any disability compensation as provided in the award of the administrative law judge shall be paid commencing with the first day after such time period and shall continue to be paid until the order of the board is issued, except that no payments shall be made under this provision for any period before the first day after such time period. Nothing in this section shall be construed to limit or restrict any other remedies available to any party to a claim under any other statute." (Emphases added.)

K.S.A. 2019 Supp. 44-551(l)(2)(C) then recognizes an exception to this payment due date for cases where compensability is not in question (for example, when the only question in dispute is the amount of the award, not whether an award is appropriate in the first place):

"In any case in which the final award of an administrative law judge is appealed to the board for review under this section and in which the compensability is not an issue to be decided on review by the board, medical compensation shall be payable in accordance with the award of the administrative law judge and shall not be stayed pending such review. The employee may proceed under K.S.A. 44-510k, and amendments thereto, and may have a hearing in accordance with that statute to enforce the provisions of this subsection."

In Harper v. Coffey Grain Co., 192 Kan. 462, 466, 388 P.2d 607 (1964), the Kansas Supreme Court reviewed a previous version of this statute and concluded that "[u]ntil a workmen's compensation award becomes the final award of the workmen's compensation commissioner"—a role now held by the Board—"it is not due [to] the claimant." Harper thus held that a claimant could not make a demand for payment or seek a penalty under K.S.A. 44-512a until a review under K.S.A. 44-551 concluded. 192 Kan. at 466. The court later relied on this conclusion in Acosta, when it observed that "[t]he right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Board." 273 Kan. at 398.

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Although K.S.A. 44-551 has been amended in the 56 years since Harper, its provisions continue to reflect that payments on awards become due after the Board's review. K.S.A. 2019 Supp. 44-551(l)(1) states that an ALJ's final orders and awards "shall be subject to review by the workers compensation appeals board" if any interested party timely requests the Board's review. The statute empowers the Board to significantly change the award—or deny the award altogether, as it did in this case. See K.S.A. 2019 Supp. 44-551(l)(1) ("the board shall have authority to grant or refuse compensation, or to increase or diminish any award of compensation"). Only after the Board's review does the award become "final" under K.S.A. 2019 Supp. 44-551(p). This structure thus allows the Board to conduct its review, and alter any award accordingly, before an employer's payment obligations begin. Under K.S.A. 2019 Supp. 44-551, there are three possibilities when an award could become payable:

 If any party seeks review by the Board, the Board must issue its decision within 30 days of when the parties submit arguments. K.S.A. 2019 Supp. 44-551(l)(1). Payment becomes due when the Board issues its decision on the award.  If the Board does not issue its decision within 30 days of the parties' arguments to the Board, payments for any medical or disability compensation must begin on "the first day after such time period"—namely, the 31st day after argument. K.S.A. 2019 Supp. 44-551(l)(2)(B).  If no party seeks the Board's review of an ALJ's award, that award becomes due after the 10-day timeframe for seeking review expires. K.S.A. 2019 Supp. 44-551(l)(1).

Despite this statutory language and Kansas Supreme Court caselaw, Aikins argues that two recent decisions of this court— Nuessen and Gould—indicate that in order to avoid a penalty for nonpayment of an award, an employer must apply for and obtain a stay of execution. She correctly points out that Gates neither sought nor was granted a stay of the award in this case while its review was pending before the Board. But this argument is wide of the mark because Nuessen and Gould involved a statute and

882 COURT OF APPEALS OF KANSAS VOL. 57

Aikins v. Gates Corp. process that only come into play after payment obligations have accrued. Nuessen and Gould both considered whether an appeal from the Board to the Court of Appeals under K.S.A. 2014 Supp. 44- 556 and the Kansas Judicial Review Act effected an automatic stay of any payments due. Both decisions concluded K.S.A. 2014 Supp. 44-556 did not include any automatic stay. Nuessen, 51 Kan. App. 2d 616, Syl. ¶ 5; Gould, 2018 WL 1545789, at *5. Thus, in order to avoid any payment obligations or penalties during the course of an appeal to this court, an employer must seek a stay from the ALJ, the Board, or the appellate court. Importantly, however, the legal question presented in Nuessen and Gould only arose after the Board had issued its decision under the K.S.A. 2019 Supp. 44-551 review process. That is, Nuessen and Gould considered what happens after the event that triggers the payment obligation. But no payment is due while the Board conducts its review under K.S.A. 2019 Supp. 44-551. Thus, in contrast to the situations in Nuessen and Gould, and contrary to Aikins' arguments here, there is no need for a stay of payment obligations during the Board's review of an award under K.S.A. 2019 Supp. 44-551 because no payments are yet due. Aikins also cites K.S.A. 2019 Supp. 44-551(l)(2)(C), which states that payment of some awards "shall not be stayed" pending the Board's review. She argues that the legislature's inclusion of this language indicates other payments could be stayed—meaning some payment obligation must exist before the Board issues its decision. This argument is misplaced, however, because it ignores the purpose of K.S.A. 2019 Supp. 44-551(l)(2)(C). The legislature understood the possibility of a stay in contexts when compensability was not at issue. In such instances—not present in this case—no one disputes an employer's payment obligation. It does not follow that a stay is necessary in all other contexts under K.S.A. 2019 Supp. 44-551. Indeed, the statutory language and Kansas caselaw point to the opposite conclusion. Here, Aikins demanded payment from Gates one week after the ALJ issued its compensation award. The 10-day timeframe for Gates to seek the Board's review had not expired. The ALJ held a hearing on Aikins' penalty request before she filed her brief with

VOL. 57 COURT OF APPEALS OF KANSAS 883

Aikins v. Gates Corp. the Board regarding the original compensation award—an award the Board ultimately reversed. The 30-day clock in K.S.A. 2019 Supp. 44-551 had not begun to run. And the ALJ granted Aikins' penalty before the Board issued its decision. In short, no payment was yet due. K.S.A. 44-512a(a) does not allow a claimant to demand payment of a compensation award, or seek a penalty for nonpayment of an award, until payment has become due. Under the plain language of K.S.A. 2019 Supp. 44-551, no payment is due on an award until 30 days after the Board has received the parties' arguments (or after the Board renders its decision, whichever is earlier). Because Aikins' original award was not yet due under K.S.A. 2019 Supp. 44-551 when she demanded payment, the Board correctly found her application for penalties was premature. The ALJ erred in entering a penalty in this case; the Board's decision re- versing that penalty is affirmed.

Affirmed.

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In re Lien Against the District at City Center

___

No. 121,184

IN RE: A PURPORTED LIEN AGAINST PROPERTY OF THE DISTRICT AT CITY CENTER, LLC.

___

SYLLABUS BY THE COURT

1. MECHANICS' LIENS—Statutory Remedial Mechanism—Purpose. Mechanic's liens are remedial mechanisms, created by statute and designed to protect unpaid suppliers of labor and materials for real estate construction projects. The theory underlying the granting of a mechanic's lien against the property is that the property improved by the labor, equipment, material, or supplies should be charged with the payment of the labor, equipment, material, or supplies.

2. SAME—Strict Compliance with Statute Required before Lien Is Enforcea- ble. Once a mechanic's lien attaches to property, courts liberally construe Kansas' lien statutes to effect their remedial goal. But a party asserting a lien must strictly comply with Kansas' mechanic's lien statutes before that lien becomes enforceable.

3. SAME—Verified Lien Statement—Requisite Components. Any person filing a lien—whether a contractor, subcontractor, or other supplier—must include a verified statement showing the owner's name, the claimant's name and address for service of process, a description of the real property, and a reasonably itemized statement and the amount of the claim.

4. STATUTES—Interpretation—Intent of Legislature Governs—Appellate Re- view. Questions of statutory interpretation are legal issues over which appellate courts exercise unlimited review. When interpreting statutes, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. For this reason, courts look first to the statute's text; it is only when the meaning of the statutory language is ambiguous that courts turn to rules of statutory construction.

5. REAL PROPERTY—Liens against Property—Statutory Procedure to Ex- pedite Claims. The Kansas Legislature enacted K.S.A. 58-4301 in response to the activities of militias and common-law type groups, to provide a quick and efficient method to remove facially bogus liens meant solely to intimidate and harass property owners.

6. SAME—Liens against Property—Statute Definition of Purported Lien as "Fraudulent". K.S.A. 2019 Supp. 58-4301(e)(1) defines a purported lien as "fraudulent" if it is "not a document or instrument provided for by the constitution or laws of this state or of the United States." A court considering

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In re Lien Against the District at City Center

an allegation that a lien is "fraudulent" under this provision must not adjudicate whether the lien or interest is legitimate but only whether the documents are recognized under Kansas or federal law.

7. MECHANICS' LIENS—No Presumption of Fraud if Document Provided For by Constitution or Statute. If a document is provided for by constitution or statute, it is not presumed fraudulent. A mechanic's lien is a document provided for by Kansas law and thus is not fraudulent under K.S.A. 2019 Supp. 58-4301(e)(1).

Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed February 28, 2020. Reversed and remanded.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, Jaclyn S. Maloney, of REAL Law, LLC, of Lee's Summit, Missouri, and Mandi R. Hunter, of Hunter Law Group, PA, of Prairie Village, for appellant Kansas City Steel Werx, Inc.

Taylor Jensen and Colin M. Quinn, of Long & Robinson, LLC, of Kansas City, Missouri, for appellee Haren & Laughlin Construction Company, Inc.

Before BUSER, P.J., SCHROEDER and WARNER, JJ.

WARNER, J.: Under Kansas law, a subcontractor may file a mechanic's lien with the district court against the property where he or she performs work to secure payment for unpaid labor and materials. Kansas statutes require a person filing a mechanic's lien to include a "reasonably itemized statement" explaining the lien amount. K.S.A. 60-1102(a)(4). The property owner may seek to cancel the lien if this requirement is not met. Or if the subcontractor seeks to enforce the lien, any interested party—the property owner, the general contractor, or any other subcontractor—may challenge the amount of the lien or its itemization. In this case, a subcontractor filed a mechanic's lien against a development project in Lenexa to recover payment for unpaid work and materials, but the documents accompanying the lien may not have supported the entire amount sought. Instead of challenging the lien through normal channels, the contractor claimed the lien was "fraudulent" under K.S.A. 2019 Supp. 58-4301—a statute adopted to address bogus and abusive filings by militias and sovereign-citizen groups. The district court granted the contractor's petition and summarily removed the lien, ruling that without a complete itemization the lien was "not a document or instrument provided for by" Kansas law. We reverse, as K.S.A. 2019

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In re Lien Against the District at City Center

Supp. 58-4301 is not a proper avenue for considering the validity of a mechanic's lien.

FACTUAL AND PROCEDURAL BACKGROUND

The District at City Center, LLC, engaged Haren & Laughlin Construction Co., Inc., as the contractor to build a mixed-use development in Lenexa. The contractor then hired a subcontractor, Kansas City Steel Werx, Inc., to supply steel and labor for the project. The contractor and subcontractor entered into a contract for $2,859,387. As work progressed, the subcontractor requested compensation for additional work through change orders submitted to the contractor; the contractor approved two of these change orders, totaling $25,410.45, increasing the projected total contract cost to $2,884,797.45. To ensure payment for its unpaid services, the subcontractor filed a mechanic's lien in October 2018 against the development. The lien stated unpaid labor and materials costs in the amount of $418,627.94—the difference between $2,904,384.10 (the value of the work the subcontractor asserted it performed at the time the lien was filed) and $2,485,756.16 (the payments the subcontractor had received). The itemizations filed with the lien included documentation of the projected contract cost of $2,884,797.45 (including the original contract and two approved change orders) as well as several change-order requests for additional labor. The lien stated the value of this additional labor was $91,203. But the attached change-order requests only totaled roughly $66,000, leaving the remaining $25,000 in claimed labor unitemized and unex- plained. The lien stated the subcontractor's work on the development project was still ongoing, meaning additional costs were being incurred. Once the mechanic's lien was filed, the property owner could have filed an action challenging the lien. See K.S.A. 60-1108. Or the subcontractor could have attempted to amend or foreclose on the lien, allowing all interested parties to weigh in on the contractor's payment obligations. See K.S.A. 60-1105(a); K.S.A. 60- 1106. None of these actions took place, however. Instead, the contractor filed a motion under K.S.A. 2019 Supp. 58-4301, claiming the lien was "fraudulent" and asking the court to set it aside.

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In re Lien Against the District at City Center

Two weeks later, before the subcontractor filed a response, the district court granted the contractor's motion and removed the lien. Relying on caselaw interpreting K.S.A. 60-1102's requirement of a "reasonably itemized statement," the court found the mechanic's lien was insufficient to inform the property owner whether the claimed charges were actually due:

"Here, the lien's itemized statement is insufficient, first because [the lien statement] does not account at all for nearly $25,000 in claimed 'additional work,' and second because the line statement values the 'total work performed' at $2,904,384.10, yet the stated total value of the contracted-for work plus the claimed 'additional work' is much higher . . . . These gaps make it impossible for [the contractor] to 'ascertain whether the material was furnished and the charges fair,' so the lien is facially deficient." (quoting Huber Co. v. DeSouza, 32 Kan. App. 2d 614, Syl. ¶ 2, 86 P.3d 1022 [1986]).

The court found that because the lien and attached itemization did not clearly account for all the amounts claimed, it was "not a document provided for by the constitution or by federal or state law." See K.S.A. 2019 Supp. 58-4301(e). The court therefore ruled the lien was "fraudulent" and removed it without further consideration of its validity. The subcontractor moved to alter or amend the judgment and requested to amend the lien in order to provide additional documentation of its labor and material costs. The court denied both motions. The subcontractor now appeals.

DISCUSSION

Mechanic's liens are remedial mechanisms, created by statute and "designed to protect unpaid suppliers of labor and materials for real estate construction projects." Tarlton v. Miller's of Claflin, Inc., 43 Kan. App. 2d 547, 549, 227 P.3d 23 (2010), rev. denied 292 Kan. 969 (2011); see K.S.A. 60-1101. "The theory underlying the granting of a lien against the property is that the property improved by the labor, equipment, material, or supplies should be charged with the payment of the labor, equipment, material, or supplies." Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 170, 910 P.2d 839 (1996). Once a lien attaches, courts liberally construe mechanic's lien statutes to effect that goal. Buchanan v. Overley, 39 Kan. App. 2d 171, 173, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008). But a party asserting

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In re Lien Against the District at City Center a lien must strictly comply with Kansas' mechanic's lien statutes before that lien becomes enforceable. Haz-Mat Response, 259 Kan. at 170; Buchanan, 39 Kan. App. 2d at 173. Kansas statutes establish different lien-perfection requirements for general contractors and subcontractors. Compare K.S.A. 60-1102 (liens generally) with K.S.A. 60-1103 (subcon- tactors); see also Tarlton, 43 Kan. App. 2d at 549. Any person filing a lien—whether a contractor, subcontractor, or other supplier—must include a verified statement showing the owner's name, the claimant's name and address for service of process, a description of the real property, and "a reasonably itemized statement and the amount of the claim." K.S.A. 60-1102(a). A subcontractor who files a lien must also include the name of the contractor and is subject to different timing requirements for filing. See K.S.A. 60-1103(a)(1). Subcontractors who work on residential property—not at issue here—must include additional documentation. See K.S.A. 60-1103(a)(2), (3). Once perfected, mechanic's liens are powerful tools that allow the lienholder to foreclose on the subject property if the claim remains unpaid. See K.S.A. 60-1105. That said, Kansas law provides multiple avenues for interested parties to challenge the validity and enforceability of a lien. For example, before a lienholder initiates a foreclosure action, a property owner can file a separate action to remove the cloud of the lien from the property. See K.S.A. 60-1108. During such actions, the parties may introduce evidence to determine, among other matters, whether the lien is properly supported and verified. See Manhattan Mall Co. v. Shult, 254 Kan. 253, 254-56, 864 P.2d 1136 (1993). Likewise, any action to foreclose on the lien must join all interested persons who claim an interest in the property, including the original contractor and any other subcontractors, to determine the validity of the lien and the priority of all interests asserted. See K.S.A. 60-1106; Boyce v. Knudson, 219 Kan. 357, 358-59, 548 P.2d 712 (1976). The case does not involve either of these procedures. Instead, the contractor filed a motion "requesting a judicial determination of the status and validity of an instrument purporting to create an interest, lien, or claim" against the development property under

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K.S.A. 2019 Supp. 58-4301. Under this statute, a court may conduct an expedited review of a lien's status to determine whether it is "fraudulent":

"Any person who owns real or personal property or an interest in real or personal property or who is the purported debtor or obligor and who has reason to believe that any document or instrument purporting to create a lien or claim against the real or personal property or an interest in real or personal property previously filed or submitted for filing and recording is fraudulent as defined in subsection (e) may complete and file . . . a motion for judicial review of the status of documentation or instrument purporting to create a lien or claim as provided in this section." (Emphases added.) K.S.A. 2019 Supp. 58-4301(a)(1).

A motion under this statute may be filed "at any time without any time limitation" and does not require a filing fee. K.S.A. 2019 Supp. 58-4301(a)(1), (3). Courts may rule on the motion "solely on . . . the documentation or instrument attached to the motion and without hearing any testimonial evidence." K.S.A. 2019 Supp. 58- 4301(b). The court's review "may be made ex parte without delay or notice of any kind." K.S.A. 2019 Supp. 58-4301(b). If the court concludes the lien is fraudulent, the court may issue an order "setting aside the lien and directing the filing officer to nullify the lien instrument." K.S.A. 2019 Supp. 58-4301(c)(2). And a party who succeeds in setting aside a filing as fraudulent may maintain a separate action against the filer for actual and statutory damages, as well as an injunction against filing any liens or claims in the future. See K.S.A. 2019 Supp. 58-4302. A court presumes a lien is "fraudulent" within the meaning of the statute if it meets one of the three criteria listed in K.S.A. 2019 Supp. 58-4301(e)—that is, if it:

"(1) Is not a document or instrument provided for by the constitution or laws of this state or of the United States; "(2) is not created by implied or express consent or agreement of the obligor, debtor or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary or other representative of that person; or "(3) is not an equitable, constructive or other lien imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States." K.S.A. 2019 Supp. 58-4301(e)(1)-(3).

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In re Lien Against the District at City Center

The question presented in this appeal is whether a mechanic's lien that fails to strictly comply with the elements of K.S.A. 60- 1102 or K.S.A. 60-1103 is "fraudulent" within the meaning of K.S.A. 2019 Supp. 58-4301(e)(1). More specifically, is a mechanic's lien with deficiencies in its attached itemization of costs "a document or instrument provided for by" Kansas law? See K.S.A. 2019 Supp. 58-4301(e)(1). Statutory interpretation is a legal issue over which appellate courts exercise unlimited review. In re Mechanic's Lien against City of Kansas City, 37 Kan. App. 2d 440, Syl. ¶ 1, 154 P.3d 515, rev. denied 284 Kan. 946 (2007). When interpreting statutes, "the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained." Neighbor v. Westar Energy, Inc., 301 Kan. 916, Syl. ¶ 2, 349 P.3d 469 (2015). For this reason, we look first to the statute's text; it is only when the meaning of the statutory language is ambiguous that we turn to rules of statutory construction. 301 Kan. 916, Syl. ¶ 2. The parties propose different interpretations of what it means to be a "document or instrument provided for by" state or federal law under K.S.A. 2019 Supp. 58-4301(e)(1). The subcontractor points out that mechanic's liens are contemplated—indeed, are established—by Kansas law; though parties may disagree over whether the lien is valid, the document itself is a recognized filing. See K.S.A. 60-1101 et seq. The contractor argues, and the district court found, that Kansas law does not recognize a mechanic's lien that fails to strictly comply with K.S.A. 60-1102. See Buchanan, 39 Kan. App. 2d at 173. The text of the statute does not resolve this disagreement. Thus, we turn to the statute's legislative history and other principles of construction to determine its meaning. The Kansas Legislature enacted K.S.A. 58-4301 in 1998. This court has previously observed the law was apparently promul- gated "in response to the activities of militias and common-law type groups such as the Freeman and the Christian Court." City of Kansas City, 37 Kan. App. 2d at 444. The members of these anti- government groups had been wreaking havoc by writing bogus and fraudulent checks and filing (or attempting to file) frivolous

VOL. 57 COURT OF APPEALS OF KANSAS 891

In re Lien Against the District at City Center liens against property owners and government officials. Legisla- tors passed S.B. 408, later codified as K.S.A. 58-4301, to provide a "quick and efficient method to remove facially bogus liens meant solely to intimidate and harass property owners." 37 Kan. App. 2d at 444 (citing Minutes, Sen. Judiciary Comm., January 15, 1998, attach. 1). K.S.A. 58-4301 was modeled after a Texas statute—Tex. Gov't. Code Ann. § 51.901—enacted to address similar concerns. See Reports of the Special Committee on Judiciary to the 1998 Kansas Legislature, pp. 8-3, 8-4. Like K.S.A. 58-4301(e)(1), Texas law presumes a document that "purports to create a lien or claim" to be fraudulent if it "is not a document or instrument provided for by the constitution or laws of this state or of the United States." Tex. Gov't. Code Ann. § 51.901(c)(2)(A) (West 2007). The Texas Court of Appeals has addressed the interaction of Texas' fraudulent-lien statute and mechanic's lien laws in multiple cases. In In re Purported Liens or Claims Against Samshi Homes, L.L.C., 321 S.W.3d 665 (Tex. App. 2010), a person filed multiple mechanic's liens on properties but incorrectly named the company's managing member, not the company, as the properties' owner. On appeal, Samshi Homes—like the contractor here—argued the liens were "fraudulent" under Tex. Gov't. Code Ann. § 51.901(c)(2)(A) because they failed to comply with Texas law governing mechanic's liens. 321 S.W.3d at 666-67. The Texas Court of Appeals rejected this argument, finding that a trial court is limited under the fraudulent lien statute "to determining whether a particular instrument . . . is fraudulent as therein defined; it may not rule on the validity of the underlying lien itself or other claims between the parties." 321 S.W.3d at 667. Because the mechanic's liens were "instruments 'provided by the . . . laws of [Texas],'" the court held they are "not presumed fraudulent" under § 51.901(c)(2)(A). 321 S.W.3d at 668. And any claims regarding the mechanic's liens' validity must be resolved under the mechanic's lien statutes, not the fraudulent-lien law. Later Texas cases have similarly interpreted the "document or instrument provided for by [law]" language to limit a court's inquiry to whether a document—on its face—is recognized under the law. Cardenas v. Wilson, 428 S.W.3d 130, 132 (Tex. App.

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In re Lien Against the District at City Center

2014); David Powers Homes, Inc. v. M.L. Rendleman Co., 355 S.W.3d 327, 338 (Tex. App. 2011). That is, the fraudulent-lien law "'was intended not to address the validity of the purported lien or interest in the property but the legitimacy of the document man- ifesting the purported lien or interest.'" 355 S.W.3d at 338 (quoting In re Hart, No. 07-98-0292-CV, 1999 WL 225956, at *2 [Tex. App. 1999] [unpublished opinion]). The contractor in this case presents two arguments questioning the analysis in these Texas cases. First, it asserts that Texas only requires substantial compliance with its mechanic's liens to render a lien enforceable, while Kansas law demands strict compliance to perfect a lien. Compare Texcalco, Inc. v. McMillan, 524 S.W.2d 405, 407 (Tex. Civ. App. 1975), with Buchanan, 39 Kan. App. 2d 171, Syl. ¶ 3. But this point conflates assessing a lien's validity with an allegation that the lien is fraudulent. Under the Texas analysis, courts do not reach the question of a lien's validity under its fraudulent-lien law; instead, they examine the document or instrument to determine whether it is legally cognizable on its face. Second, the contractor contends the Texas reasoning cannot be reconciled with this court's decision in City of Kansas City. We disagree. In that case, another panel of this court interpreted K.S.A. 2006 Supp. 58-4301(e)(2)—which applies when a person purports to file a lien for work completed without the property owner's consent. Although brought under the fraudulent-lien statute, City of Kansas City turned on a different question: whether a person who completed work for a tenant could file a lien against a landlord. 37 Kan. App. 2d at 441-42. The parties in that case thoroughly litigated the issue, exchanged significant briefing before the district court with documentary evidence, and argued the issue at a hearing. 37 Kan. App. 2d at 442. After the district court made factual findings and ruled on the record, the only issue raised on appeal was whether these conclusions were supported by substantial competent evidence. 37 Kan. App. 2d at 448. City of Kansas City did not consider whether a mechanic's lien is a "document or instrument provided for" by Kansas or federal law under K.S.A. 2019 Supp. 58-4301(e)(1). It involved an alle-

VOL. 57 COURT OF APPEALS OF KANSAS 893

In re Lien Against the District at City Center gation of fraudulence brought under a different statutory subsection and raised a different question on appeal. In short, our analysis in City of Kansas City has no bearing on the central legal question in this case. We find the reasoning of the Texas courts in interpreting Tex- as' fraudulent-lien law instructive to our interpretation of K.S.A. 2019 Supp. 58-4301. In adopting this state's fraudulent-lien law, the Kansas Legislature relied on Texas' similar statute, citing the same concerns Texas sought to address in its law as motivations for the Kansas provision. The law was not adopted in response to mechanic's liens that did not strictly comply with Kansas statutes—a matter already addressed in K.S.A. 60-1101 et seq.—but to abusive and illegitimate filings by extremist groups to cloud property owners' title. Thus, a court considering an allegation that a lien is fraudulent under K.S.A. 2019 Supp. 58-4301(e)(1) must not "'adjudicate whether the lien or interest is legitimate but only whether the documents are'" recognized under Kansas or federal law. See David Power Homes, 355 S.W.3d at 338 (quoting Hart, 1999 WL 225956, at *2). To hold otherwise would allow a party, such as the contractor here, to circumvent the specific statutory provisions governing mechanic's liens and well-established contract law in favor of a summary, ex parte procedure. Such a practice would be contrary to our canons of statutory construction, which presume the legislature intends specific provisions defining the specific rights at issue to control. See Sierra Club v. Moser, 298 Kan. 22, 54, 310 P.3d 360 (2013). Thus, adopting the reasoning of our Texas counterpart, under K.S.A. 2019 Supp. 58-4301(e)(1) if a document on its face is

"provided for by constitution or statute, . . . then it is not 'presumed fraudulent' . . . . A trial court may base its finding solely on its review of the document itself and without hearing any testimonial evidence. A trial court may review the document ex parte and without delay or notice of any kind, but the trial court may make no finding as to any underlying claim. [Citations omitted.]" Cardenas, 428 S.W.3d at 132.

Applying these standards here, we conclude the document filed by the subcontractor in this case—a mechanic's lien—is a document provided for by Kansas law within the meaning of

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In re Lien Against the District at City Center

K.S.A. 2019 Supp. 58-4301(e)(1). The district court erred when it granted the contractor's motion under K.S.A. 2019 Supp. 58-4301. That ruling is reversed, and the case is remanded for further proceedings consistent with this opinion. As a final note, our decision in this case relates only to whether the mechanic's lien was fraudulent under K.S.A. 2019 Supp. 58-4301(e)(1). We make no finding as to the validity of the mechanic's lien filed by the subcontractor in this case—that is, whether the lien strictly complies with K.S.A. 60-1102 and K.S.A. 60-1103. The district court reached that conclusion below. But that ruling was made under K.S.A. 2019 Supp. 58-4301(b), without allowing the subcontractor and any other interested parties to argue their relative positions and without allowing for any correction or amendment. If parties seek to challenge the subcontractor's lien, they must do so under the various procedures outlined in K.S.A. 60-1101 et seq., not under K.S.A. 2019 Supp. 58-4301.

Reversed and remanded.

VOL. 57 COURT OF APPEALS OF KANSAS 895

State v. Hayes

___

No. 120,417

STATE OF KANSAS, Appellee, v. CHRISTOPHER HAYES, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Breach of Privacy—Determination of Reasonable Ex- pectation of Privacy. To determine whether someone has a reasonable expectation of privacy under K.S.A. 2019 Supp. 21-6101(a)(6) we consider (1) whether the person subjectively believes he or she has an expectation of privacy in the situation and (2) whether a reasonable person in the same or similar circumstances would have an expectation of privacy. The answers to these questions are highly fact specific.

2. SAME—Breach of Privacy—Concealment of Person and Concealment of Recording Devices Violates Statute. A person violates K.S.A. 2019 Supp. 21-6101(a)(6) if the person independently conceals any of the recording devices listed in the statute or if the person conceals him or herself while using one of the listed recording devices to secretly record a person as prohibited by the statute.

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed March 6, 2020. Affirmed.

Hope E. Faflick Reynolds, 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., HILL and GARDNER, JJ.

ARNOLD-BURGER, C.J.: Christopher Hayes filmed one of his neighbors, A.W., through her window, in a state of undress. It was dark outside, some lights were on inside, and A.W.'s blinds were up on one of her windows. Hayes made the recording without A.W.'s knowledge or permission. The State charged Hayes with breach of privacy. During his trial the district court allowed the State to present evidence that Hayes bought a SPYTEC video watch. There was no dispute that Hayes did not use the watch to film A.W. Additionally, the court allowed the State to present evidence that neighbors had observed Hayes looking into their windows.

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State v. Hayes

A jury convicted Hayes of breach of privacy. On appeal, Hayes argues there was insufficient evidence to support the conviction, the district court erred in admitting certain evidence, and the court violated his right to a fair trial by using an erroneous jury instruction and placing guilty before not guilty on the verdict form. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In early 2017, Shawna Prigmore and Hayes were married. At the time, Prigmore was suspicious of some of Hayes' behavior. For instance, Hayes would take their dogs on walks that took much longer than anticipated and Prigmore could not find Hayes when she tried to do so. At some point, Prigmore told Hayes that she wanted to see his phone. Hayes gave Prigmore his phone and Prigmore noticed that Hayes had logged into Facebook under the name John Davidson. Prigmore asked Hayes about the identity of John Davidson. In response Hayes said, "'You caught me. Divorce me.'" Prigmore told Hayes to write down all of his account usernames and pass- words and he did. Later that day, Prigmore signed into the accounts and found an email that included an attachment of a woman laying topless on a bed. Prigmore contacted the police to report what she had found. Detective Troy Bussard with the Wichita Police Department located the woman in the video, A.W., who lived near Hayes when the video was recorded. A.W. told Detective Bussard that she did not give anyone permission to film her. Based on that information, the State charged Hayes with breach of privacy and alleged that the crime was sexually motivated. A.W. testified at trial that she and Hayes lived near each other in a gated, secured access community. A.W. viewed the video that Prigmore found and identified herself as the woman in the video. A.W. testified that she did not know the video was being filmed and did not give anyone permission to film her. According to A.W., while she was being filmed, she was laying on her bed wearing only her underpants, reading her Kindle, and likely watching television.

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State v. Hayes

A.W. stated that she considered her home to be a private space, somewhere where she could "escape from the outside world." According to A.W., if she were to stand outside her window she could not see into the house. But A.W. acknowledged that someone taller than her may be able to see in, but she reiterated that the window was a "high-up" window. The photograph presented to the jury shows a window, the bottom of which appears to be about 6 feet off the ground. Although the complex does not allow residents to park in the area, they all have access to it via a large parking area between it and another unit. A.W. acknowledged that the bedroom window's blinds were pulled up when the video was recorded. Hayes did not present any evidence at trial. In closing arguments, Hayes argued, in part, that there was insufficient evidence to show that A.W. had a reasonable expectation of privacy because the blinds on her window were up when he recorded the video. The jury found Hayes guilty of breach of privacy and found that the crime was sexually motivated. Hayes timely appeals. Additional facts will be added as necessary.

ANALYSIS

There was sufficient evidence to support Hayes' conviction.

Hayes first argues that there was insufficient evidence to support his conviction because (1) A.W. did not have a reasonable expectation of privacy in her bedroom and (2) there was no indication that he recorded A.W. using a concealed device.

We examine our standard of review.

But this case also involves statutory interpretation—the meaning of the words used in the breach of privacy statute—K.S.A.

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State v. Hayes

2019 Supp. 21-6101(a)(6). Interpretation of a statute presents a question of law over which appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). The most fundamental rule of statutory construction is that the intent of the Legislature governs if we can determine that intent. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d 850 (2019). The State charged Hayes with breach of privacy, as defined by K.S.A. 2014 Supp. 21-6101(a)(6). "Breach of privacy is knowingly and without lawful authority: . . . . "(6) installing or using a concealed . . . camera of any type, to secretly . . . film . . . or record by electronic or other means, another, identifiable person under or through the clothing being worn by that other person or another, identifiable person who is nude or in a state of undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy." (Emphases added.) K.S.A. 2014 Supp. 21-6101(a).

The statute does not define "concealed" or "reasonable expectation of privacy," the only two provisions raised by the parties here. See K.S.A. 2019 Supp. 21-6101. Hayes argues that A.W. did not have a "reasonable expectation of privacy" and that the phone he used to record A.W. was not "concealed" as the statute required.

There was sufficient evidence for a jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom.

The breach of privacy statute requires that the person whose privacy was breached had a "reasonable expectation of privacy" under the circumstances. K.S.A. 2019 Supp. 21-6101(a)(6). Hayes argues that—as a matter of law—A.W. did not have an expectation of privacy because her blinds were up. So we turn first to the meaning of a "reasonable expectation of privacy" as used in the statute. Kansas courts have not addressed the phrase "reasonable expectation of privacy" as it is used in K.S.A. 2019 Supp. 21-

VOL. 57 COURT OF APPEALS OF KANSAS 899

State v. Hayes

6101(a)(6). So we look to cases that involve similar issues or statutes that involve a similar analysis to see if we can draw any parallels to aid us in interpreting the meaning of this statutory phrase. Hayes argues that we should look at this court's decision in State v. Kowalewski, No. 108,943, 2013 WL 5925967 (Kan. App. 2013) (unpublished opinion), for guidance. In Kowalewski, a panel of this court addressed what constitutes a "private place" as used in K.S.A. 2012 Supp. 21-6101(a)(3). 2013 WL 5925967, at *1. We held that a private place is a place where a "person may reasonably expect to be safe from surveillance or uninvited intrusion." 2013 WL 5925967, at *1. The State charged Kowalewski with breach of privacy, for "entering with intent to listen surreptitiously to private conversations in a private place or to observe the personal conduct of any other person or persons entitled to privacy therein" under K.S.A. 2012 Supp. 21-6101(a)(3). (Emphases added.) 2013 WL 5925967, at *3. The victim discovered Kowalewski looking into her window with his face up against the window pane. To look into her window Kowalewski walked up the woman's steps, moved to the side of the house, and stepped onto a concrete slab so that he could look through the window which was 5 to 6 feet off the ground. On appeal, Kowalewski argued the State failed to prove that he was in a private place. This court held that the area Kowalewski was standing in was a private place because it was reasonable to expect that no one will stand at the side of your home and stare into your living room. The court dismissed Kowalewski's argument that this interpretation would lead to the criminalization of lots of ordinary conduct, such as the conduct of a person who can see through his or her neighbor's windows. The court reasoned that Kowalewski's argument overlooked the requirement that the violator must have entered the area to observe the personal conduct. If a person can see into the house next door, that is merely incidental to living in his or her place of residence. The court noted that

"to the extent that one's windows are without blinds or curtains and a neighbor is easily able to see in, the resident may not 'reasonably expect to be safe' from surveillance by the neighbor. The same is true with regard to passers-by on the street if you leave the blinds or curtains open on the front window to your house." 2013 WL 5925967, at *3.

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State v. Hayes

But ultimately that situation did not apply to Kowalewski because he entered his neighbor's property and the neighbor had "a reasonable expectation that no one would be peering in the window on the side of her house from a standing position immediately next to the house." 2013 WL 5925967, at *4. Here, the video makes it abundantly clear that Hayes is positioned right next to A.W.'s window, not in the general common area where people would typically walk. Together with Kowalewski, Hayes argues that this court should consider Fourth Amendment jurisprudence when considering what constitutes a reasonable expectation of privacy. He argues that "no Fourth Amendment search occurs where a law enforcement officer observes incriminating evidence or unlawful activity from a nonintrusive vantage point." State v. Fisher, 283 Kan. 272, 293, 154 P.3d 455 (2007). Likewise, under Fourth Amend- ment caselaw, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amend- ment protection." Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). So since Hayes was simply looking through the window from a nonintrusive vantage point, it could not be a breach of A.W.'s privacy. While general concepts used in Fourth Amendment cases may be illustrative, the Fourth Amendment seeks to protect citizens from unreasonable searches and seizures by the government. See State v. Dugan, 47 Kan. App. 2d 582, 587, 276 P.3d 819 (2012); see also McCormick v. City of Lawrence, 278 Kan. 797, 799, 104 P.3d 991 (2005). But this case does not involve a governmental search and whether police officers unreasonably searched A.W.'s home or could have used their observations of her to obtain a search warrant if they publicly observed criminal activity. The Fourth Amendment is distinct from the right to privacy. It "protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." Katz, 389 U.S. at 350. Instead, this court must determine whether A.W. had a reasonable expectation of privacy from the prying eyes of her neighbor. That said, we can gain insight from Fourth Amendment jurisprudence when determining whether A.W. had a reasonable expectation

VOL. 57 COURT OF APPEALS OF KANSAS 901

State v. Hayes of privacy. In the Fourth Amendment context, to have a "legitimate" expectation of privacy, the defendant must show "'an actual or subjective expectation of privacy in the subject of the search or seizure'" and show that "'this expectation of privacy is objectively justifiable under the circumstances.'" United States v. Nagle, 803 F.3d 167, 176 (3d Cir. 2015); see State v. Alexander, 26 Kan. App. 2d 192, 197, 981 P.2d 761 (1999). We gain additional insight from the analysis the courts use in a self-defense context. Courts use the same two-part analysis when determining whether a person has a "reasonable belief" that his or her actions are justified when asserting self-defense. A person is justified in using force against another "when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force." (Emphasis added.) K.S.A. 2019 Supp. 21-5222(a). To determine whether someone claiming self-defense reasonably believes that such force was necessary, our courts use a two-prong test. First, the court examines whether the person subjectively believed use of force was necessary—did the person "sincerely and honestly believe[] it necessary." State v. Stewart, 243 Kan. 639, 649, 763 P.2d 572 (1988). Second, this court uses an objective standard to determine "whether a reasonable person in [like] circumstances would have perceived self-defense as necessary." 243 Kan. at 649. We find the same two-pronged test helpful here. The questions become: (1) Did A.W. subjectively have an expectation of privacy in her bedroom with the blinds up and (2) would a reasonable person in similar circumstances have an expectation of privacy in the same location? The answers to these questions are highly fact specific. Given a review of the facts and the video here it is not difficult to see how a rational fact-finder, when viewing the evidence in a light most favorable to the State, could have found that A.W. had a reasonable expectation of privacy in her bedroom—even though the window blinds were up. First, A.W. subjectively had an expectation of privacy in her bedroom. She testified that she considered her home to be a private space where she could "escape from the outside world." According to A.W., if she were to stand outside her window she could not see into

902 COURT OF APPEALS OF KANSAS VOL. 57

State v. Hayes the house. There was substantial evidence to show that A.W., subjectively, had an expectation of privacy in her bedroom at 10 p.m. at night. Second, this court cannot say that, objectively, A.W. did not have a reasonable expectation to privacy under the circumstances. A reasonable person in similar circumstances would have an expectation of privacy. The video was recorded outside A.W.'s bedroom in early December at around 10 p.m. The bedroom window faces a common area, but from the photographs the common area appears to be somewhere to park as opposed to an area where people typically gather, especially late at night in December. The video itself shows that some casual passerby would not have had an open view of A.W. on her bed. The bed is offset from the window, and an observer, like Hayes, would need to be at an extreme angle to see the bed. And the window was not level with the ground. At its lowest point the window was elevated almost 6 feet above the ground, requiring someone to be somewhat taller than 5 feet or use an assistive device to see through the window, particularly given the angle of the video. In sum, this was not a situation in which A.W. was walking na- ked in front of her picture window claiming she had an expectation to privacy. See Kowalewski, 2013 WL 5925967, at *3. She was in her home in a private gated community, in the privacy of her own dimly illuminated bedroom, laying on her own bed, at a common nightly bedtime, partially undressed, reading a book. The bed was not directly in front of but was offset from the window. Hayes was clearly pressed right up against the window and angling the camera toward A.W.'s bed while filming her. When viewing the evidence in a light most favorable to the State, a rational fact-finder could have found that a reasonable person in similar circumstances to A.W. would have an expectation of privacy even if the blinds of one of her windows were up. See Chandler, 307 Kan. at 668.

There was sufficient evidence to conclude that Hayes used a concealed camera.

To prove Hayes guilty of breach of privacy, the State had to prove that he "install[ed] or us[ed] a concealed camcorder, motion picture camera or photographic camera of any type." K.S.A. 2019 Supp. 21-6101(a)(6). Hayes argues that the word concealed applies

VOL. 57 COURT OF APPEALS OF KANSAS 903

State v. Hayes to each device listed in the statute and that there was insufficient evidence to show that the iPhone used to record the video was concealed. We need not decide Hayes' first argument—that concealed mod- ifies each device listed—because even if it does, there was sufficient evidence to support the jury's conclusion that Hayes concealed the iPhone. Hayes argues that the evidence merely showed that Hayes concealed the act of recording, as opposed to the device used. Yet this argument is unpersuasive. The statute requires that the recording device either be installed or used. Installing a camera would suggest it is secretly hidden somewhere independently to record without a person operating it. On the other hand, using a recording device would suggest that someone is actively operating it. Hayes personally recorded A.W. late at night, in an unlit area, outside A.W.'s window. It appears from the video that he held the camera in his hands. Given the nature of his activities it is safe to assume that he was concealing himself from others, somehow rising to the necessary height to record her on a winter evening at bedtime. It is clear he was not simply walking by the window. Hayes was concealed when he recorded A.W., therefore the iPhone he used was concealed as well. The statute does not require any additional concealment of the recording device. There was sufficient evidence to support the jury's conclusion that the iPhone was concealed. See Chandler, 307 Kan. at 668. In sum, Hayes' arguments that there was insufficient evidence to support his conviction are unpersuasive. After viewing the evidence in a light most favorable to the State, there was sufficient evidence for a rational fact-finder to find Hayes guilty as charged.

The district court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive.

Hayes argues that the district court erred by admitting a receipt which showed that Hayes bought a video watch from SPYTEC a few weeks before this incident. He claims the evidence was irrelevant and its prejudicial effect substantially exceeded its probative value. In response, the State argues that Hayes failed to timely object, or in the alternative that the court did not admit the

904 COURT OF APPEALS OF KANSAS VOL. 57

State v. Hayes evidence in error. The State also argues that if Hayes timely objected and the district court erred in admitting the evidence, that the admission of the receipt was harmless.

We examine our standard of review.

Admission of evidence involves several legal considerations: determining relevance; identifying and applying legal principles including rules of evidence; and weighing prejudice against probative value. See State v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010). K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016). The erroneous admission or exclusion of evidence is subject to review for harmless error under K.S.A. 2019 Supp. 60-261. See State v. Lowery, 308 Kan. 1183, 1235, 427 P.3d 865 (2018). An error is harmless if there is no reasonable probability that the error affected the outcome of the trial given the entire record. 308 Kan. at 1235.

Hayes failed to preserve this issue for appeal.

During trial, before the court admitted the receipt into evidence but after the State showed it to her, Prigmore testified that she found a receipt "from a spy tech company for a watch camera." A short time later the State moved to admit the SPYTEC confir- mation order and receipt—dated a few weeks before this incident—and Hayes objected. The receipt shows that Hayes bought a video watch, likely designed to make video recordings unobtru- sively. There was no evidence that he used the video watch here. But the receipt itself, the only thing objected to, did not add any substantive information other than what Prigmore had already testified to—without objection. "The contemporaneous-objection rule is codified in K.S.A. 60-404 and provides that a timely and specific objection to evidence at trial is required to preserve issues arising from that admission on appeal." State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009). Because there was no contemporaneous objection to

VOL. 57 COURT OF APPEALS OF KANSAS 905

State v. Hayes the testimony about the purchase, Hayes has failed to preserve the issue for appellate review.

The purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.

But even if Hayes had preserved the issue, the spy watch receipt was relevant. Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). This definition requires the evidence to be material and probative. Evidence is material when the fact it supports is in dispute or in issue in the case. Evidence is probative if it has any tendency to prove any material fact. State v. Dupree, 304 Kan. at 63-64. Granted, Hayes recorded the video in question using an iPhone and there was no evidence that the video watch related to this case. But the State had to prove that Hayes secretly videotaped A.W. without her consent. Evidence showing that Hayes had recently bought a video watch from SPYTEC conveyed his desire to engage in surreptitious behavior. Hayes' defense was that the State had failed to prove that he concealed the phone he used. We agree with the State that "[s]uch a defense is less credible in light of evidence showing that, three weeks before recording the video, defendant bought a watch that clearly could be used for purposes of secretly recording someone." And the only objection made by Hayes was to relevance. But even if Hayes properly preserved the issue for appeal and even if the receipt were not relevant, the error was harmless.

The admission of the watch receipt was harmless.

After considering the record as a whole, there is no reasonable possibility that the receipt showing that Hayes bought a video watch impacted the jury's decision. Prigmore testified that she found the video of A.W. in an email account associated with Hayes. Hayes ultimately did not argue that he did not record the video. In fact, during closing arguments Hayes acknowledged, perhaps somewhat disingenuously, that "at no point throughout [the] trial has the defense ever suggested that Christopher Hayes was not the person who recorded the video we saw earlier" and that to do so would "insult the jury's intelligence." Instead, Hayes'

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State v. Hayes defense relied on his arguments that the State failed to prove that A.W. had a reasonable expectation of privacy—and that he did not conceal the iPhone. There is no reasonable probability that the receipt impacted the outcome of the trial given the entire record. If it was error to admit the receipt, the error was harmless. See Lowery, 308 Kan. at 1235.

The district court did not erroneously admit prior bad acts evidence.

Before trial, the State moved to admit evidence at trial that neighbors had found Hayes looking into their windows. At a pretrial hearing, the district court ruled that the evidence was admissible to show identity. At trial, the State called Brad Long who testified that he saw Hayes looking through A.W.'s window on a different occasion than when the video was recorded. Long confronted Hayes who said that he was looking through the window because he heard a loud noise. The State also called Emily Straub as a witness. Emily testified that she saw Hayes standing on her air conditioning unit staring into her apartment. Straub asked Hayes what he was doing, and he said that he saw a flashing light and wanted to make sure everything was all right. Richard Straub, Emily's husband, testified that Emily told him that she saw Hayes on the air conditioner looking into their window. Richard went outside and found a lit cigarette by the air conditioner. Richard said that he had noticed cigarette butts near the air conditioner for around a week before Emily saw Hayes. Before Long and the Straubs testified, the district court instructed the jury that it could only consider the testimony to be evidence of Hayes' identity. Hayes argues the district court erred by allowing the State to present evidence that neighbors had seen him looking through their windows because identity was not a disputed material fact. The State argues that Hayes failed to object properly to some of the testimony and that identity was a material fact at issue when the State offered the testimony.

We examine our standard of review.

In reviewing the admission of prior crimes evidence under K.S.A. 2019 Supp. 60-455, an appellate court uses a three-step

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State v. Hayes test. First, the court considers whether the evidence is relevant in establishing a material fact at issue. Determining whether the prior crimes evidence is material is subject to de novo review. Second, the reviewing court must determine whether the opponent disputes the material fact and whether the material fact is relevant in proving the disputed fact. We review the district court's decision for an abuse of judicial discretion. Finally, the court must consider whether the probative value of the evidence outweighs its prejudicial effect. We also analyze this decision for an abuse of discretion. If the court admits prior crimes evidence under K.S.A. 2019 Supp. 60-455 in a jury trial, the judge must provide a limiting instruction to inform the jury of the specific purpose for which the evidence is admitted. State v. Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). And finally, K.S.A. 60-404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record. Dupree, 304 Kan. at 62.

Hayes' objection was timely as to two witnesses.

The State correctly points out that Hayes did not contemporane- ously object to Long's testimony. By the time Hayes objected, Long had already testified that he saw Hayes standing right next to A.W.'s window and looking inside. Failure to make a contemporaneous objection is fatal to his claim of error regarding Long's testimony. See K.S.A. 60-404 (precluding an appellate court from reviewing an evidentiary challenge absent a timely and specific objection made on the record). But Hayes did timely object to the testimony from the other two witnesses. So we will address his claim as to those two witnesses.

Evidence of prior bad acts was admissible to show identity because at the time of the rulings Hayes had not admitted that he was the one recording A.W.

Hayes argues the evidence of his prior bad acts was irrelevant because identity was not a material fact at trial because he did not

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State v. Hayes allege that someone else made the recording of A.W. Hayes did concede that he was the person who filmed A.W. in his closing argument. But up until that point Hayes had not informed the court that he would be conceding that he filmed A.W. During opening statements, Hayes reminded the jury that it was the State's burden to prove every element of the crime charged. The closest Hayes' counsel came to conceding identity during opening statement was when he said, "You will see a video that was found in Mr. Hayes' possession that depicts a topless lady." But that equivocation lines up directly with what the district court was considering when it ruled the evidence would be admissible. As the district court reasoned, Hayes' defense could have been that he did not use the camera, he just had possession of the video. When Hayes objected to the testimony, he did not inform the court that he was not contesting that he was the person who recorded the video. So when the court issued its ruling the identity of the videographer was still in dispute. Had Hayes changed course since the motion hearing, this would have been the time to tell the judge that he was not disputing identity any longer so the judge could reconsider his prior ruling. He did not. The court had to consider whether the evidence was relevant in establishing a material fact at issue. Identity is a material fact. State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007). The district court's determination that the evidence was relevant in proving a disputed material fact was not an abuse of discretion. See Ingham, 308 Kan. at 1469. Evi- dence that neighbors found Hayes looking into their homes was relevant to prove that he was the one who did so in this case as well. Finally, the probative value of the evidence was not outweighed by its prejudicial effect. Given Hayes' final decision to concede identity in closing arguments the evidence of Hayes' prior misdeeds would not have impacted the jury's decision. Hayes relied on his argument that A.W. did not have an expectation of privacy and that he did not conceal the iPhone. The State presented substantial evidence to support the jury's decision on each of those issues—independent of the challenged evidence. The probative value of the evidence to prove identity, which at the time the State

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State v. Hayes presented the evidence was still in dispute, outweighed any potential prejudice. The district court did not err by admitting evidence of Hayes' prior bad acts. See Haygood, 308 Kan. at 1392-93.

Even if the evidence was not relevant, its admission was harmless given Hayes' defense theory.

Finally, even if we were to find the admission of this evidence was in error, the error was harmless. First, Hayes' attorney told the jury that the State would present this evidence. In his opening statement to the jury he announced, "You will hear testimony about people in Mr. Hayes' neighborhood who say they saw him looking in windows." Second, there is no reasonable probability that the prior bad acts evidence affected the trial's outcome. Given how Hayes framed the issues to the jury in closing, the jury only needed to determine whether it believed that A.W. had a reasonable expectation of privacy in her bedroom and whether Hayes concealed the iPhone he used. Evidence that neighbors had caught Hayes peeking into other windows would not have affected the jury addressing those issues. If the district court erred in admitting the prior bad acts evidence, which we do not believe it did, the error was harmless. See Lowery, 308 Kan. at 1235.

The district court did not err by placing "guilty" above "not guilty" on the verdict form.

Hayes argues that the district court erred by placing "guilty" above "not guilty" on the verdict form. He requested that the court place "not guilty" first, but the district court denied his request.

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

Whether a party has preserved a jury instruction issue affects the appellate court's reversibility inquiry at the third step. 307 Kan. at 317. A verdict form is not a jury instruction, but it is part of the packet sent with the jury which includes the instructions. The

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State v. Hayes standard of review used to analyze jury instruction issues is the same used when addressing verdict forms. Unruh v. Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009). In this case, the verdict form the court gave the jury placed "We, the jury, find defendant guilty of Breach of Privacy" above "We, the jury, find defendant not guilty of Breach of Privacy." Hayes argues this is inconsistent with his presumption of innocence. But Hayes acknowledges that the Kansas Supreme Court has decided this issue in the State's favor. Our Supreme Court held 30 years ago that the court does not encroach upon the defendant's presumption of innocence by placing the guilty option above the not guilty option on a verdict form. State v. Wesson, 247 Kan. 639, 652, 802 P.2d 574 (1990), superseded by statute on other grounds. The court reaffirmed its holding in State v. Wilkerson, 278 Kan. 147, 159, 91 P.3d 1181 (2004). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. Tillman v. Goodpasture, 56 Kan. App. 2d 65, 77, 424 P.3d 540 (2018). Hayes offers no indication that the Kansas Supreme Court is departing from its holdings in Wesson and Wilkerson. The district court did not err by placing the guilty option above the not guilty option in the verdict form given to the jury.

The district court did not err by instructing the jury that "[i]f you have no reasonable doubt . . . , you should find the defendant guilty."

Hayes argues the district court denied his right to a jury trial by forbidding the jury from exercising its power of nullification. In support, he relies on State v. Smith-Parker, 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485 (2014), where the Kansas Supreme Court held that it is error to instruct the jury that it "'must'" or "'will'" find the defendant guilty if the jury did not have a reasonable doubt as to the guilt of the defendant. In Smith-Parker, the district court instructed the jury: "'If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.' (Emphasis added.)" 301

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State v. Hayes

Kan. at 163. Smith-Parker argued the will should have said should. The Kansas Supreme Court agreed, in part, holding that the words "will" and "must" impermissibly forbid the jury from exercising its power of nullification. 301 Kan. at 164. Hayes argues the word "should" is essentially the same as "must" in the context of jury instructions. He cites State v. Lovelace, 227 Kan. 348, 354, 607 P.2d 49 (1980), to support his argument; but the Supreme Court overruled Lovelace in Smith-Parker. Smith-Parker, 301 Kan. at 164. Additionally, PIK Crim. 4th 51.010 (2017 Supp.) states: "If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty." (Emphasis added.) The Supreme Court has strongly recommended that Kansas courts use the PIK instructions because the pattern instructions are designed to "'bring accuracy, clarity, and uniformity to [the] instructions.'" State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018). Finally, this court has consistently held that the word should "'does not upset the balance between encouraging jury nullification and forbidding it.'" State v. Green, 55 Kan. App. 2d 595, 619, 419 P.3d 83 (2018), rev. denied 309 Kan. 1351 (2019). As this court has reasoned, the words must, shall, and will express a mandatory duty or obligation that the word should does not. Instead, the word should merely encourages the jury to follow the proper course of action. State v. Allen, 52 Kan. App. 2d 729, 735, 372 P.3d 432 (2016). Our prior reasoning is persuasive. The district court did not err in using the PIK instruction to instruct the jury that if it had no reasonable doubt as to the truth of each claim it should find the defendant guilty.

There was no cumulative error.

Hayes' final argument is that even if no single error is enough to require reversal of his conviction, the cumulative effect of multiple errors deprived him of a fair trial. The test is whether the totality of the circumstances establish that defendant was substantially prejudiced by cumulative errors and was denied a fair trial. In assessing the cumulative effect of

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State v. Hayes errors during the trial, the appellate court examines the errors in the context of the entire record, considering how the trial judge dealt with the errors as they arose; the nature and number of errors and their interrelationship, if any; and the overall strength of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). The court will find no cumulative error when the record fails to support the errors defendant raises on appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015). A single error cannot support reversal under the cumulative error doctrine. State v. Gon- zalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). Hayes' argument that cumulative error deprived him of a fair trial is not persuasive. Because we have found at most one error (admission of the SPYTEC receipt), which we found to be harmless, there can be no cumulative error which deprived Hayes of a fair trial. See Gonzalez, 307 Kan. at 598.

Affirmed.