Opinion
No. 106,960.
2013-12-27
STATE of Kansas, Appellee, v. Mark KENDALL, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following a bench trial, the Reno County District Court found Defendant Mark Kendall guilty of stalking and violating a protective order when he placed telephone calls from the State prison in El Dorado, where he was an inmate, to his former wife, even though the calls were not completed and the two never spoke. The evidence failed to establish the element of communication necessary to prove stalking but does support an attempt. Kendall's actions did violate a term of the protective order prohibiting “telephoning,” which, unlike communicating, does not require a completed call. The other points Kendall argues on appeal are unavailing. We, therefore, affirm in part, reverse in part, and remand with directions that the district court vacate Kendall's conviction for stalking, find him guilty of attempted stalking, and resentence him accordingly.
Factual Background and Procedural History
The district court pronounced its judgment of guilt from the bench and essentially made partial findings of fact on the stalking charge but no findings on the charge of violating a protective order. In a criminal case, a district court is not required to explain its decision and may render the equivalent of a general verdict of guilty or not guilty. State v. Scott, 201 Kan. 134, 137, 439 P.2d 78 (1968). In any event, we view the evidence in a light most favorable to the State, as the prevailing party, and in support of the findings of guilt. See State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). We set forth the salient facts that way. In doing so, we focus on the facts directly bearing on the issues on appeal and dispense with a recitation of evidence that may have been relevant at trial but has dissolved into the background here.
Kendall and D.K., his ex-wife, had a difficult marriage. D.K. obtained a protective order against Kendall. He was in prison for convictions arising from earlier incidents in which he stalked D.K., violated that protective order, and victimized her through computer crimes. Despite those issues, the two maintained a relationship of sorts because they have a young daughter A.K. For example, notwithstanding the protective order, they had an arrangement by which Kendall would call D.K.'s cell phone to speak with A.K. When D .K. saw Kendall's phone number come up on her phone, she would answer and simply hand the phone to A.K.
Kendall pled guilty to the crimes for which he was imprisoned in El Dorado on February 1, 2010, and was sentenced on March 5, 2010. Between the plea and sentencing, D.K. obtained a new protective order against Kendall from the Reno County District Court. The protective order, among other restrictions, directed Kendall not to “telephone, contact or otherwise communicate with” D.K. and not to “contact” her “either directly or indirectly.” The protective order went into effect on February 22, 2010, and remained valid for a year. A sergeant with the Hutchinson Police Department testified that he informed Kendall of the new protective order and the restrictions it imposed.
When he arrived at the prison in El Dorado, Kendall listed D.K.'s cell phone number for inclusion on his approved call list. But he identified the number as his daughter's. At trial, Kendall testified he knew he was not supposed to call D.K. and listed the number that way so he could talk with A.K.
The prison telephone system inmates use tracks the calls placed. Those records show Kendall dialed D.K.'s cell phone number once on May 23, four times on July 6, three times on July 7, and once on July 8, 2010. The records indicate each of the calls as a “[n]o [a]nswer” with a time cf “0.00.” The Reno County District Attorney charged Kendall with one count of stalking, a felony under K.S.A.2010 Supp. 21–3438(a)(3) and (b)(3), and one count of violating a protective order, a misdemeanor under K.S.A.2010 Supp. 21–3843, for each date At Kendall's preliminary hearing, the district court dismissed the charges based on the July 6 calls for lack of venue in Reno County. The State did not appeal that ruling. At the bench trial, the district court acquitted Kendall of the charges related to the calls on May 23 and July 8 without giving a detailed explanation. The district court mentioned D.K.'s failure to report those calls in her initial contact with law enforcement about Kendall's violation of the February 2010 protective order. The State may not app sal the acquittals. That leaves the two charges based on the July 7 calls Kendall placed.
D.K.'s testimony about all of the calls, including those on July 7, is less than clear. Based on the identification information that appeared on her cell phone, she initially believed they were from a collection agency. D.K. said she tried to return one of the calls and found she was contacting ICS. She investigated the acronym on the internet and determined it to be “Inmate Correctional Solution” and, coupled with the area code for the calls, deduced they came from the El Dorado prison and, thus, Kendall. The testimony suggests D.K. determined the calls came from Kendall on or before July 6. D.K. testified that meant Kendall “was trying to prove to me he would still find me no matter what and he could get through the system no matter what.” D.K. said, as a result, she was “scared” and “sad” because “it just pretty well showed he would find me and my daughter.” Nonetheless, D.K. said she answered at least one of the calls on My 7, but she did not testify that she heard anything or anyone when she did. Kendall testified that he heard a clicking sound when he placed the calls and nobody answered.
Issues on Appeal
1. Sufficiency of the Evidence
Stalking
Kendall challenges the sufficiency of the evidence to support each conviction. We address those points together because the elements of the offenses have some commonality. As charged, the stalking offense required that Kendall have notice of a protective order prohibiting contact with D.K., that he “intentionally or recklessly engage[d]” in “[a]ny act of communication” with D.K. in a manner that would cause a reasonable person to fear for his or her safety or the safety of a family member, and D.K. actually was fearful. K.S.A.2010 Supp. 21–3438(a)(3) and (f)(1)(G). The statute also defines “communication” as meaning “to impart a message by any method of transmission, including, but not limited to: Telephoning, personally delivering, sending or having delivered, any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer.” K.S.A.2010 Supp. 21–3438(f)(2).
In pertinent part, the statute criminalizing violation of a protective order simply requires the defendant “knowingly or intentionally” violate the order. K.S.A. 21–3843(a)(1). As we noted, the February 22 protective order forbade Kendall's telephoning D.K.
On appeal, Kendall argues the State failed to prove “[a]ny act of communication” to support the stalking charge because the telephone calls he placed to D.K. on July 7 were not connected. He says, as a result, there was no communication. Neither Kendall nor the State has cited a controlling or even analogous case construing the word “communication” or the phrase “act of communication” as used in the stalking statute or elsewhere. The plain meaning of “communication” reflects the delivery or transmitting of a message from one person to another. Merriam–Webster's Collegiate Dictionary 251 (11th ed.2003) (communication defined as “a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior”). As the definition indicates, the communication may be nonverbal; that is, it relies on signals rather than words. Semaphore would be an example. The key to communication is the shared understanding of the sender and recipient of the words or symbols used.
The definition of “communication” in K.S.A.2010 Supp. 21–3438(f)(2) entails that characteristic of common understanding attributable to words or symbols used to transmit ideas. The notion of imparting or sending a message presumes the sender and recipient share comprehension of the communicative format of the idea. And it presupposes an underlying idea. Returning to semaphore as an example, a cheerleader waving around pom-poms may inadvertently mimic a few semaphore signals. But there wouldn't be communication because the cheerleader intended to convey no particularized idea or message with the gestures. Nor would there be communication if a semaphorist perfectly signaled a message but none of the observers understood the signals.
Here, there was no evidence of communication within the meaning of K.S.A.2010 Supp. 21–3438(f)(2) to support the conviction for stalking. The telephone calls Kendall placed to D.K. on July 7 were not completed. There is some tension in the evidence as to whether D.K. physically answered her telephone. But by all accounts, Kendall and D.K. were never connected with one another, and he never spoke to her on July 7. So there was no communication.
The dissent, however, says there was an act of communication because Kendall attempted to call D.K. See K.S.A.2010 Supp. 21–3438(f)(1)(G). But that approach misconstrues the statutory language, particularly the definition of “communication.” See K.S .A.2010 Supp. 21–3438(f)(2). Inserting that definition into the phrase, we have statutory language proscribing “any act of impart[ing] a message by any method of transmission.” The clear sense of the wording entails delivering or communicating—imparting—the message. Even assuming there were some play in the statutory language that might support treating an unanswered telephone call as imparting a message, that interpretation would be sufficiently strained or unusual as to violate the rule of lenity. State v. Coman, 294 Kan. 84, Syl. ¶ 5, 273 P.3d 701 (2012) ( “Under the rule of lenity, criminal statutes must be strictly construed in favor of the defendant.”). The rule requires that “[a]ny reasonable doubt as to the meaning of a criminal statute” must go to the accused. 294 Kan. 84, Syl. ¶ 5. Had the legislature intended the meaning the dissent imputes, it would have said so. The proscribed conduct would have been “attempting communication” or “attempting to communicate” rather than “[a]ny act of communication.”
The State and the dissent pick up on D.K.'s testimony that the unanswered calls caused her to believe or conclude Kendall could find her and contends that amounts to communication sufficient to support a violation of K.S.A.2010 Supp. 21–3438(a)(3). While D.K. might have drawn that conclusion from Kendall's ability to dial her telephone number, that is not communication. The evidence fails to show that was an established or common message they attached to his act of calling her. Again by way of illustration, a person untrained in semaphore might nonetheless recognize that someone was using that code and, thus, conclude he or she had learned the skill in the military. Whatever the accuracy of that conclusion, it would not be a communication in the sense that the semaphorist was imparting that message unless he or she actually was signaling, “This is semaphore, and I learned to do this in the Navy.”
The record evidence indicates D.K. had not changed telephone numbers, so Kendall had called what he already knew to be her number. He did not independently track down a new number D.K. intended to keep secret from him. That undercuts the notion that Kendall meant the calls to communicate the idea he could find D.K. even if she didn't want to be found. The State's position, at best, overtaxes the statutory language and imputes an unusual meaning to “communication.” Again, even if that position were remotely plausible, it could rot be reconciled with the rule of lentiy.
Here, as Kendall argues, the evidence fails to support actual communication between D.K. and him on July 7, so the conviction cannot stand. That, however, is not the end of the matter. The undisputed evidence also shows that Kendall intentionally placed a call to what he knew to be D K.'s telephone number and had every reason to expect that if she answered it, they might have at least some exchange or communication. This was not a situation in which Kendall misdialed or called another number—say a close mutual friend—and D.K. unexpectedly answered. The record evidence, therefore, supports an attempt. See K.S.A.2010 Supp. 21–3301(a) (defining attempt). An attempt is “[a]ny overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails ....“ K.S.A.2010 Supp. 21–3301(a). As we have indicated, the evidence satisfies that definition for an attempted stalking. Kendall intentionally called D.K. knowing of the protective order restriction but failed to communicate with her because the call was not answered or connected.
The Kansas appellate courts have held that if the evidence presented at trial is insufficient to establish an element of the offense of conviction, the defendant may nonetheless be convicted and sentenced for a lesser included offense supported in the evidence even though the factfinder may not have considered that lesser offense. State v. Wilt, 273 Kan. 273, 278, 44 P.3d 300 (2002); State v. Harris, 46 Kan.App.2d 848, Syl. ¶ 7, 264 P.3d 1055 (2011). An attempt is a lesser offense of a completed crime, so that rule applies to Kendall. See K.S.A. 21–3107(2)(c).
As to the stalking conviction, we reverse and remand with directions that Kendall be sentenced for attempted stalking.[1]
[1] Kendall also argues that the evidence the State presented at his preliminary hearing failed to establish the crime of stalking. The Kansas courts have rejected the argument that insufficiency of evidence to bind over at a preliminary hearing constitutes a basis for reversing a verdict or judgment of guilty following a trial on the merits. State v. Jones, 290 Kan. 373, 381, 228 P.3d 394 (2010) (“As a general principle, after an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is considered harmless unless it appears that the error caused prejudice at trial.”); State v. Butler, 257 Kan. 1043, 1061–62, 897 P.2d 1007 (1995). Kendall has neither argued nor demonstrated that the purported insufficiency of evidence at the preliminary hearing prejudiced him at trial. The rule outlined in Jones and Butler controls here. Kendall's point is without merit.
Violating Protective Order
Kendall's challenge to his conviction for violating a protective order, though creative, fails to demonstrate any error. The protective order directed Kendall not to “telephone” D.K. The word “telephone,” as a verb, includes both communicating with someone using a telephone and attempting to do so. Merriam–Webster's Collegiate Dictionary 1284 (11th ed.2003) (“telephone” defined as “to speak to or attempt to reach by telephone”). Thus, we have the common promise, “I will telephone (or call) you.” That refers to the physical act of dialing a telephone in an effort to speak with someone. It does not require that the call be completed or that the parties actually speak. The undisputed trial evidence shows that Kendall deliberately dialed D.K.'s cell phone number. Those facts support a prohibited effort to telephone D.K., a violation of the protective order. On that basis, the evidence supported Kendall's conviction for violating a protective order under K.S.A.2010 Supp. 21–3843.
Kendall makes two related challenges to that conviction. First, Kendall argues that the complaint alleged that he was in Reno County when he placed the calls to D.K. on July 7. He plainly was not; he was in prison in Butler County. For purposes of addressing the argument, we presume such a reading of the complaint. But the charge could be construed to say the violation occurred in Reno County without specifying where Kendall actually was. The undisputed evidence showed D.K. to have been in Reno County when she received the call on her cull phone, so the district court had jurisdiction.
The violation of the protective order could have been prosecuted in the venue where the call originated or where it was received. See State v. Castleberry, 48 Kan.App.2d 469, 477, 293 P.3d 757 (2013) (crime of using telephone to facilitate distribution of illegal drugs in violation of K.S.A.2009 Supp. 21–36a07(a) may be charged in county where call originated or county where it was received). Because the call reached D.K.'s cell phone in Reno County, we need not deal with a variant in which the call never gets to the recipient's telephone. We suppose that could happen if an inmate attempted to call a telephone number that is not on his or her approved list and the transmission was blocked. Or if, as a result of a spike in telephone traffic generally, the call didn't get to the recipient's telephone.
Although the evidence presented at trial as to Kendall's location differed from what was arguably alleged in the complaint, Kendall did not object at trial or otherwise assert the difference as a ground for relief in the district court. Kendall does not contend he was prejudiced in presenting any defenses to the charge. That would be improbable, since he knew exactly where he was when he called on July 7 regardless of how the language of the complaint might be read.
Had Kendall asserted the difference between the proof at trial and the phrasing of the complaint in the district court, the State could have moved to amend the complaint. K.S.A. 22–3201(e). The statute allows amendments “at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Had the point been raised, the district court would have acted well within the latitude of the statute in permitting the amendment. Kendall has not shown deprivation of a fundamental right or even material prejudice as a result of the factual assertion in the complaint. Especially given his failure to raise the issue in a timely fashion in the district court, we find no reversible error on appeal.
For his second point, Kendall argues the district court, in making the bench ruling on the stalking charge, found that he placed the call to D.K. recklessly and, therefore, the element of intentionally violating the protective order had not been proven. The argument is flawed in several respects. The argument misconstrues the district court's explanation of its bench ruling finding him guilty of stalking. The district court noted that Kendall had called D.K. in the past with the understanding that she would give the phone to A.K. The court explained that it was reckless or foolhardy for Kendall to rely on that arrangement as a legal excuse or defense in calling D.K., especially after the February 22 protective order went into effect. The district court did not make a finding that Kendall's actions in placing calls to D.K. by dialing her cell phone number were reckless rather than intentional. Calling a place where D.K. possibly could answer the phone, such as a business where she worked, arguably could be reckless in the sense that someone other than D.K. could answer the phone even though the act of dialing would have been intentional. Here, however, Kendall intentionally placed calls to D.K.'s personal cell phone. Any way that evidence is parsed, Kendall's conduct was intentional.
In its bench comments, the district court specifically said Kendall “at least recklessly disobeyed” the protective order and the evidence was “sufficient” to conclude Kendall was reckless in making calls to D.K.'s personal telephone. Those were findings related to the stalking charge, Strictly speaking, the district court merely found the evidence supported a finding of recklessness. The district court made no converse finding that the evidence failed to establish Kendall intentionally placed the telephone calls to D.K. or failed to show he intentionally violated the protective order.
As we pointed out earlier, the district court was under no legal obligation to make factual findings in addition to rendering a judgment of guilty or not guilty. The district court simply made no findings as to the violation of the protective order charge. Reviewing the district court's comments at the close of the evidence in their entirety, we discern no finding inconsistent with the judgment of guilt for violating the protective order.
In sum, Kendall has failed to present any viable arguments for reversing his conviction for violating the protective order.
2. Legal Sufficiency of the Complaint
Finally, Kendall argues that the complaint insufficiently charged the stalking offense because it failed to identify the particular act allegedly violating the protective order and merely cited K.S.A.2010 Supp. 21–3438(f)(1) containing the list of prohibited actions. Kendall did not challenge that aspect of the complaint before trial or by filing a motion to arrest judgment afterward. As Kendall acknowledges, the Kansas Supreme Court's decision in State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), governs attacks on the sufficiency of a complaint when the defendant has failed to file a motion to arrest judgment in the district court. He argues the rule in Hall should be abandoned.
The Hall court held that a jurisdictional attack on a complaint made on appeal in the absence of a motion to arrest or similar challenge at the trial level would lie only if: “[T]he claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant's ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant's substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10.” 246 Kan. at 765. The charging instrument should be liberally construed in favor of validity in the absence of any challenge to it in the district court. 246 Kan. at 764. Kendall does not argue that the circumstances of his case fit within any of the categories outlined in Hall. We fail to see any obvious way they would.
But Kendall contends Hall should be overruled and the Kansas courts should return to the much stricter pre- Hall standards for evaluating the sufficiency of charging documents in criminal cases. (Those stricter standards still apply when a defendant challenges the sufficiency of the charging instrument in the district court. Hall, 246 Kan. at 764.) Kendall points to comments critical of Hall the Kansas Supreme Court recently voiced in State v. Portillo, 294 Kan. 242, 253–57, 274 P.3d 640 (2012), as supportive of his position. The issue the court addressed in Portillo was somewhat different—it dealt with off-grid sentences for Jessica's Law offenses. The court specifically noted it had not been asked to reconsider Hall and had no need to do so in resolving that issue. Portillo, 294 Kan. at 255. We are simply a way station for a pitch to jettison Hall. Unless the Kansas Supreme Court overrules Hall, something it hasn't done, we are obligated to follow that decision. See State v. Dawson, 43 Kan.App.2d 800, 803, 231 P.3d 582 (2010). Kendall's point, therefore, fails.
We reverse Kendall's conviction for stalking under K.S.A.2010 Supp. 21–3438 and remand with directions that he be sentenced for an attempt. We affirm Kendall's conviction for violating a protective order under K.S.A.2010 Supp. 21–3843.
* * *
BUSER, J., concurring in part and dissenting in part.
I concur in my colleagues' affirmance of Kendall's conviction of violating a protective order. I dissent from the judgment vacating his conviction for stalking and finding Kendall guilty of attempted stalking.
The majority bases its holding on the finding that “there was no evidence of communication within the meaning of K.S.A.2010 Supp. 21–3438(f)(2) to support the conviction for stalking.” Slip op. at 6. That is because my colleagues conclude “the evidence fails to support actual communication ” between D.K. and Kendall. (Emphasis added.) I disagree.
First, K.S.A.2010 Supp. 21–3438(a)(3) does not prohibit communication between the parties, it prohibits “an act of communication.” An act is “[s]omething done or performed, esp. voluntarily” or “[t]he process of doing or performing; an occurrence that results from a person's will being exerted on the external world.” Black's Law Dictionary, 26 (8th ed.2004). My colleagues acknowledge: “The undisputed evidence also shows that Kendall intentionally placed a call to what he knew to be D.K.'s telephone number and had every reason to expect that if she answered it, they might have at least some exchange or communication.” Slip op. at 7.
The evidence also showed that when Kendall called D.K., she received the call, and identified it as coming from Kendall. In this way, a reasonable view of the evidence is that Kendall was in the process of engaging in communication regardless of whether there was a message conveyed by that act. In short, my colleagues incorrectly conclude that by Kendall intentionally placing the call, which was received by D.K., Kendall did not engage in an act of communication.
Second, our standard of review requires us to look at all the evidence in a light most favorable to the prosecution. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Here, contrary to the majority, there was not only evidence of “an act of communication,” K.S.A.2010 Supp. 21–3438(a)(3), there was also evidence of actual communication.
I agree with my colleagues when they state, “The key to communication is the shared understanding of the sender and recipient of the words or symbols used.” Slip op. at 5. So, what was the unspoken “shared understanding” in the present case?
At trial, D.K. testified that prior to and during Kendall's March 5, 2010, sentencing for stalking, violation of a protective order and computer crimes, he told her:
“he would always find me. No matter what he would contact me. He would never leave me alone regardless of what I would do, and he would follow me across the country if he had to. He told be before he would hunt me down and kill me.” (Emphasis added.)
When D.K. later received the offending calls from Kendall in prison, she understood this to mean that Kendall “was trying to prove to me he would still find me no matter what and he could get through the system no matter what.” In D.K.'s view, the telephone calls communicated that, although he was in prison, Kendall could still contact D.K. and in this way threaten her or cause her to fear for her and her family's safety.
Given D.K.'s past victimization by Kendall for exactly the same offense—stalking, there was a factual basis for an objective factfinder to conclude that the simple act of placing the call and its receipt by D.K. constituted a powerful and threatening communication, indeed. By placing the calls, Kendall had made good on his promise to continue stalking D.K. Upon receipt of the calls, D.K. understood that Kendall was, once again sending her a message. Spoken words or signals were unnecessary in this context. And D.K.'s reaction bolsters the conclusion that Kendall had very effectively communicated with her. She testified that she “was afraid. I was scared. I was sad. I—it just pretty well showed he would find me and my daughter.”
For both of the reasons stated, looking at all the evidence in a light most favorable to the prosecution, I would find that a rational factfinder could have found Kendall guilty beyond a reasonable doubt of stalking D.K. Accordingly, I would affirm the conviction.